This End User License Agreement (“EULA”) is between the individual consumer or business entity that will use the Software (“You”) and the applicable entity identified in the “Licensor Table” located at www.365Labs.com/swlicensortable (“Licensor”).

This EULA governs Your use of: (a) the object code version of 365Labs branded software that is preinstalled on 365Labs hardware or otherwise provided to You pursuant to a purchase contract, quote, order form, invoice or online procurement process (each, an “Order”); (b) associated software license keys, if any (“License Keys”);
(c) updates to such software (“Updates”); (d) the documentation for such software; and (e) all copies of the foregoing (collectively, “Software”). If You accept this EULA, or if You install or use the Software, then You agree to this EULA unless You already have a signed agreement with 365Labs Marketing L.P. or one of its affiliates (“365Labs”) that includes licensing terms that govern Your use of the Software (“Pre-Existing Agreement”). If You accept this EULA or install or use the Software on behalf of a business entity, then You represent that You have authority to take those actions, and this EULA will be binding on that business entity unless the entity already has a Pre-Existing Agreement. If You do not agree to this EULA, do not install or use the Software.

If You are a business entity and You purchase Software from a third party (“Reseller”) who sublicenses the Software to You under the terms of an agreement between You and such Reseller (a “Sublicense Agreement”), then the terms of Your Sublicense Agreement with the Reseller shall govern Your use of the Software and not this EULA. Resellers may only grant rights, and must pass through conditions, consistent with this EULA. Thus, even though Your Sublicense Agreement is between you and the Reseller, by installing or using the Software, You acknowledge and agree that: (a) any license rights in the Sublicense Agreement that are greater than the license rights in this EULA shall not apply; (b) any license conditions in this EULA that are not contained in the Sublicense Agreement apply to You; (c) the limitations of liability set forth in this EULA will apply in favor of Licensor, its affiliates and suppliers despite the existence of a Sublicense Agreement; and (d) Licensor is a third-party beneficiary of the Sublicense Agreement and is entitled to exercise and enforce all of the Reseller’s rights and benefits under that Sublicense Agreement.

If You purchase Software as an individual consumer, nothing in this EULA affects your statutory rights if the laws of your state or country do not permit it to do so.

1. License Grant.

1.1. Right to Use. Subject to and in consideration of your full compliance with the terms and conditions of this EULA, Licensor grants to You a personal, non-exclusive license to use the Software during the period stated in the applicable Order (if no period is specified, you may use the Software perpetually). If You are an individual consumer, this license grant allows You to use the Software in connection with Your own personal use. If You are a business entity, this license grant allows You to use the Software in connection with the internal business operations of Your entity. In addition, you may make a reasonable number of copies of the Software solely as needed for backup or archival purposes. Additional license terms for certain Software may be included in the Offering Specific Terms Table located at www.365Labs.com/offeringspecificterms (“OST Table”), and additional terms for Software that is licensed to You for a limited time (“Subscription Software”) are located at www.365Labs.com/subscription_terms (“Subscription Terms”).

1.2. Third Party Use. If You are a business entity, you may allow Your contractors (each, a “Permitted Third Party”) to use the Software solely for the purpose of providing services to You, provided that such use is in compliance with this EULA.  You are liable for any breach of this EULA by any Permitted Third Party.

1.3. Rights Reserved. The Software is licensed and not sold. Except for the license expressly granted in this EULA, Licensor, on behalf of itself and its affiliates and suppliers, retains all rights in and to the Software and in all related materials (“Works”). The rights in these Works are valid and protected in all forms, media and technologies existing now or hereafter developed. Any use of Works other than as expressly set forth herein is strictly prohibited.

1.4. Ownership. Licensor, on behalf of itself and its affiliates, retains ownership of the Works and all related intellectual property rights. If Software is provided to You on removable media (e.g., CD, DVD or USB drive), You may own the media on which the Software is recorded.

2. License Conditions.

2.1. You and Your Permitted Third Parties must do the following:

1. Run the Software only on the hardware for which it was intended to operate, when applicable;
   B. Use License Keys (if applicable) only from Licensor or an authorized 365Labs License Key provider;
   C. Treat the Software as 365Labs confidential information;
   D. Use the Software only on as many computers or devices that You purchased, in such configurations permitted by 365Labs or Licensor, and/or in accordance with the applicable unit of measure, each as may be specified on Your Order. For Software licensed via a unit of measure, the terms and descriptions of each unit of measure are located at www.365Labs.com/UOM_terms (“UOM Terms”);
   E. Abide by the export control and economic sanctions laws of the United States, the European Union and other applicable jurisdictions. Under these laws, the Software must not be used, sold, leased, exported, imported, re-exported or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. You represent and warrant that You are not the subject or target of, and that You are not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of economic sanctions of the United States, European Union or other applicable jurisdictions; and
   F. Comply with all Third-Party Terms (as defined in Section 5 below).

2.2. Except as otherwise permitted by this EULA or by mandatory law (meaning a law that the parties cannot change by contract), You must not, and must not allow Your Permitted Third Parties, to do the following:

1. Modify or remove any proprietary notices or markings on or in the Software;
   B. Transfer License Keys to any other person or entity;
   C. Download Updates from Licensor or an authorized provider unless You have a valid support agreement;
   D. Install Updates on Enterprise Products (e.g., server, networking, storage, integrated solutions, and data protection appliances) that have gone end of service life unless Licensor otherwise agrees in writing;
   E. Install and operate counterfeit versions of Software (i.e. software provided by anyone other than 365Labs or an authorized representative of 365Labs) on 365Labs hardware;
   F. Violate or circumvent any technological use restrictions in the Software;
   G. Sell, loan, rent, lease, sublicense, distribute or encumber (e.g., by lien, security interest, etc.) the Software;
   H. Use any trademarks or service marks of Licensor, its affiliates or suppliers;
   I. Provide access to the Software or allow use by any third party, other than Permitted Third Parties, without Licensor’s prior written consent;
   J. Copy, republish, upload, post or transmit the Software in any way;
   K. Modify or create derivative works based upon the Software, or decompile, disassemble, reverse engineer, or otherwise attempt to derive source code from the Software, in whole or in part;
   L. Attack or attempt to undermine the security, integrity, authentication or intended operation of the Software;
   M. Use the Software on a service bureau, rental or managed services basis;
   N. Create or permit others to create Internet “links” to the Software or “frame” or “mirror” the Software on any other server, wireless or Internet-based device;
   O. Use the Software to create a competitive offering;
   P. Use the Software to create other software, products or technologies unless the Software contains Development Tools as described in Section 7;
   Q. Share or publish the results of any benchmarking of the Software without 365Labs’s prior written consent;
   R. Use the Software for high risk activities, including without limitation online control systems, or use in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communications systems, air traffic control, life support, weapons systems or in any other device or system in which function or malfunction of the Software could result in death, personal injury or physical or environmental damage;
   S. Use the Software for activities related to weapons of mass destruction, including but not limited to, activities related to the design, development, production or use of nuclear materials, nuclear facilities, nuclear weapons, missiles or support of missile projects, or chemical or biological weapons; and
   T. Assign this EULA, or any right or obligation under this EULA, or delegate any performance, without 365Labs’s prior written consent, unless You are transferring the Software in accordance with the Transferability Section 3 below. Even if 365Labs consents to an assignment, You remain responsible for all obligations under this EULA that You incurred prior to the effective date of the assignment.
2. Transferability. If You are an individual consumer, You may transfer the Software on a permanent basis as part of the sale or transfer of the hardware system on which the Software is loaded, provided that You retain no copies of any version of the Software. If You are a business entity, You may not transfer the Software to another person or entity without the express written permission of 365Labs, unless allowed by applicable law stating that transfer may not be restricted (note that a transfer fee may be charged by 365Labs).
3. Compliance Verification. If You are a business entity, You must: (a) maintain and use systems and procedures that allow You to accurately track Your use of the Software; (b) certify to 365Labs in writing, at 365Labs’s request, that Your use of Software fully complies with this EULA, indicating the number of Software licenses deployed at that time; and (c) cooperate fully and timely with 365Labs and its auditors if 365Labs notifies You that it will conduct an audit to confirm Your compliance with this EULA. Any such audit will be conducted during normal business hours. If 365Labs determines that You have over-deployed Software, You agree to immediately purchase licenses at the then-current list price to bring Your use into compliance. If You over-deployed Software by 5% or more, then You agree to pay the total cost of the audit, in addition to any other liabilities You may have.
4. Third Party Software. “Third Party Software” is software, including open source software, that is contained in or provided with the Software and is licensed by a third party under its own terms of use (“Third Party Terms”). Third Party Software is governed solely by the applicable Third Party Terms and not by this EULA. Third Party Terms may be provided with the Third Party Software or may be included in the OST Table. For certain open source software, the applicable Third Party Terms may entitle You to obtain the corresponding source files. You may find corresponding source files for such open source software at //opensource.365Labs.com/ or in the “About” or “Read Me” file of Software, or other locations that Licensor may specify.
5. Free Software. “Free Software” means Software that is provided to You without additional charge (e.g., scripts that enable customer installation; code that enables You to monitor Your use of 365Labs products; etc.).  You may only use Free Software on or with equipment or in the operating environments for which 365Labs has designed that Free Software to operate. Licensor may terminate any license to Free Software at any time in its sole discretion. You may not transfer Free Software to anyone else.
6. Development Tools. If the Software includes development tools, such as scripting tools, APIs or sample scripts (collectively “Development Tools”), and unless there is a separate agreement between You and 365Labs or Licensor for the Development Tools, You may use such Development Tools to create new scripts and code for the purpose of customizing Your use of the Software (within the parameters set forth in this EULA and in the Development Tools themselves) and for no other purpose.
7. Evaluation Software. This EULA does not license use of Software for evaluation purposes (“Evaluation Software”) except to the extent these terms may be invoked by the separate license terms and conditions accompanying that Evaluation Software.
8. Support Services Not Included.If You purchase maintenance and support for Software, such services are identified in Your Order and will be provided under a separate services agreement.
9. Termination.For Subscription Software, this EULA automatically terminates at the end of Your subscription period unless You renew Your rights. Licensor may terminate this EULA if You or a Permitted Third Party commits a material breach of this EULA and fails to cure such breach within thirty (30) days following Your receipt of notice of the breach from 365Labs. This right to terminate applies accordingly if 365Labs or the Reseller from whom You made Your purchase does not receive timely payment for the licenses to the Software or for the hardware on which the Software is loaded, if any. When this EULA terminates, all licenses granted automatically terminate and You must immediately cease use of the Software and return or destroy all copies of the Software. Except as otherwise agreed by 365Labs, You will not get a refund from 365Labs if this EULA is terminated. Rights and obligations under Sections of this EULA that, by their nature should survive, will survive termination, as well as obligations for payment.
10. Warranty Disclaimer. Under this EULA, Licensor provides neither any warranties for the Software nor does it provide support for the Software. Your rights under any warranties and any support entitlements for Software acquired for a fee are solely between You and the Reseller or 365Labs entity from whom You procured the Software and related support, and are defined under the commercial terms agreed between You and such selling entity. Accordingly, except as otherwise offered by 365Labs, the Software is provided by Licensor under this EULA “As Is” without any warranties or conditions. To the maximum extent permitted by applicable law, Licensor, on behalf of itself and its affiliates and suppliers: (a) makes no express warranties or conditions related to the Software; (b) disclaims all implied warranties and conditions related to the Software, including merchantability, fitness for a particular purpose, title, and non-infringement; and (c) disclaims any warranty or condition arising by statute, operation of law, course of dealing or performance, or usage of trade. Licensor does not warrant uninterrupted or error-free operation of the Software. This Section does not affect or modify any of the statutory warranty rights that are available to consumers.
11. Limitation of Liability.

12.1. Limitations on Damages. The limitations, exclusions and disclaimers set forth in a Pre-Existing Agreement or 365Labs Terms of Sale that applies your Order (in each case, the “Order Terms”) shall apply to all disputes, claims or controversies (whether in contract, tort or otherwise) between You and Licensor or 365Labs related to or arising out of: (a) this EULA; (b) the breach, termination or validity of this EULA; or (c) any Orders (each, a “Dispute”). In the absence of applicable Order Terms, the terms set forth in this Section shall apply to all Disputes.

The terms of this Section are agreed allocations of risk constituting part of the consideration for Licensor’s licensing of Software to You and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a party has been advised of the possibility of the liabilities. If applicable law prohibits any portion of the limits on liability stated below, the parties agree that such limitation will be automatically modified, but only to the extent required to make the limitation compliant with applicable law.

1. Limitation on Direct Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Conditions set forth herein or of Licensor’s or 365Labs’s intellectual property rights, the total liability of You and Licensor (including Licensor’s affiliates and suppliers) arising out of any Dispute is limited to the amount You paid for the Software that is the subject of the Dispute, but excluding amounts received as reimbursement of expenses or payment of taxes. Notwithstanding anything otherwise set forth above, Licensor and its affiliates have no liability for any direct damages resulting from Your use or attempted use of Third Party Software, Free Software or Development Tools.
2. Disclaimer of Certain Other Damages. Except for Your obligation to pay for the Software, or for Your violation of the License Grant and License Conditions set forth herein or of Licensor’s or 365Labs’s intellectual property rights, neither You nor Licensor (including Licensor’s affiliates and suppliers) shall have any liability under this EULA for special, consequential, exemplary, punitive, incidental or indirect damages, or for lost profits, loss of revenue, loss or corruption of data, loss of use or procurement of substitute products or services.

12.2. Regular Backups. You are solely responsible for Your data. You must back up Your data before Licensor or a third party performs any remedial, upgrade or other work on Your production systems. You acknowledge that it is a best practice to have more than one back up copy of Your data. If applicable law prohibits exclusion of liability for lost data, then Licensor will only be liable for the cost of the typical effort to recover the lost data from Your last available back up.

12.3. Limitation Period. Except as stated in this Section, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within 18 months after the cause of action accrues.

13. Additional Terms.

13.1. Notices. The parties will provide all notices under this EULA in writing. Unless provided otherwise in an Order, You must provide notices to the local 365Labs entity in Your Order, or, if Your Order is not with a 365Labs entity, by e-mail to 365Labs_Legal_Notices@365Labs.com.

13.2. Waiver and Severability. Failure to enforce a provision of this EULA will not constitute a waiver of that or any other provision of this EULA. If a court of competent jurisdiction determines that any part of this EULA or document that incorporates this EULA by reference is unenforceable, that ruling will not affect the validity of all remaining parts.

13.3. Modifications. This EULA may only be modified in writing signed by both parties; provided, however, that Licensor may, in its sole discretion, update the Licensor Table, the OST Table, the UOM Terms and the Subscription Terms at any time. Any changes that Licensor makes to the Licensor Table, the OST Table, the UOM Terms or the Subscription Terms will only apply to Orders that occur after Licensor posts those changes online.

13.4. Governing Law and Jurisdiction. If You obtained the Software directly from 365Labs, then the governing law and jurisdiction provisions set forth in Your Order Terms shall apply to this EULA. Otherwise the following shall apply:

13. Subject to Section 13.4 D and 13.5, if You are domiciled in the United States or Canada: (1) this EULA and any Dispute is governed by the laws of the State of LA (excluding the conflicts of law rules) and the federal laws of the United States; and (2) to the extent permitted by law, the state and federal courts located in LA will have exclusive jurisdiction for any Dispute. Both parties agree to submit to the personal jurisdiction of the state and federal courts located within East Baton Rouge Parish “County”, LA, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.
14. Subject to Section 13.4 D, if You are domiciled outside of the United States or Canada: (1) this EULA and any Dispute is governed by the substantive laws in force in the country in which the Licensor is located (as indicated in the Licensor Table located at www.365Labs.com/swlicensortable), without regard to its conflict of law rules; and (2) the exclusive place of jurisdiction for any Dispute shall be in such country.
15. In any event, neither the U.N. Convention on Contracts for the International Sale of Goods, nor the Uniform Computer Information Transaction Act shall apply to this EULA or any Dispute.
16. If You are an individual consumer, this Section 13.4 does not deprive You of the protection afforded to You by the provisions of mandatory consumer protections laws that are applicable to You, nor does it prevent you from seeking remedies or enforcing your rights as a consumer under such laws.

13.5. Dispute Resolution and Binding Individual (non-class) Arbitration. This Section only applies if You are an individual consumer that resides in (or obtained the Software in) the United States or Canada. All Disputes shall be resolved exclusively and finally by binding individual arbitration. This means You and Licensor waive any right to litigate disputes in a court or before a jury and neither You nor Licensor shall be entitled to join, consolidate, or include any claims belonging to or alleged or arising from, by or on behalf of any third party to an arbitration brought hereunder, or to arbitrate any claim as a class action, class representative, class member, or in a private attorney general capacity. If You reside in (or obtained the Software in) the United States, the arbitration will be administered by the American Arbitration Association (AAA), or JAMS. If You reside in (or obtained the Software in) Canada, arbitration will be at ADR Chambers pursuant to the general ADR Chambers Rules for Arbitration located at www.adrchambers.com. The arbitration shall be conducted in the English language. The arbitration panel shall have exclusive authority to resolve any arbitrability issues including any dispute over this EULA or this arbitration provision’s scope, application, meaning and enforceability. The arbitration panel shall be empowered to grant whatever relief would be available in court, including without limitation preliminary relief, injunctive relief and specific performance. Any award of the arbitration panel shall be final and binding immediately when rendered, and judgment on the award may be entered in any court of competent jurisdiction. If any portion of this arbitration agreement is found unenforceable, the unenforceable portion shall be severed and the remaining arbitration terms shall be enforced (but in no event will there be a class arbitration). Consumer claimants (individuals whose transaction is intended for personal, family or household use) may elect to pursue their claims in small-claims court rather than arbitration. Licensor will be responsible for paying any individual consumer’s arbitration/arbitrator fees. Notwithstanding the foregoing, Licensor may apply to any relevant government agency or any court of competent jurisdiction to preserve its rights under this EULA and to obtain any injunctive or preliminary relief, or any award of specific performance, to which it may be entitled, either against You or against a non-party; provided, however, that no such administrative or judicial authority shall have the right or power to render a judgment or award (or to enjoin the rendering of an arbitral award) for damages that may be due to or from either party under this EULA, which right and power shall be reserved exclusively to an arbitration panel proceeding in accordance herewith.

13.6. Third Party Rights. Other than as expressly set out in this EULA, this EULA does not create any rights for any person who is not a party to it, and no person who is not a party to this EULA may enforce any of its terms or rely on any exclusion or limitation contained in it.

13.7 Entire Agreement. You acknowledge that You have read this EULA, that You understand it, that You agree to be bound by its terms, and that this EULA, along with the Order Terms into which this EULA may be incorporated (as applicable), is the complete and exclusive statement of the agreement between You and Licensor regarding Your use of the Software. All content referenced in this EULA by hyperlink is incorporated into this EULA in its entirety and is available to You in hardcopy form upon Your request. The pre-printed terms of Your purchase order or any other document that is not issued or signed by Licensor or 365Labs do not apply to Software. You represent that You did not rely on any representations or statements that do not appear in this EULA when accepting this EULA.

U.S. Return Policy
Direct (applies only to purchases directly from 365Labs)

365Labs values its relationship with you and offers you the option to return most products you purchase directly from 365Labs.  For all purchases not made directly from 365Labs, please check the return policy of the location from which you purchased your product. Note: If your purchase qualifies for a promotion offered by 365Labs that extends the return period for a specific product, the return rights and obligations included with the promotion will apply to your purchase. 

30-Day Return Period for Certain Products and Accessories: Unless you have a separate agreement with 365Labs, or except as provided below, all hardware, accessories, peripherals and parts may be returned if requested and approved by 365Labs within 30 calendar days from the date on the packing slip or invoice for a refund or credit of the purchase price paid. Note that your refund or credit may be reduced by the amount of shipping and handling fees and any applicable restocking fees (as further described below). Any product returned to 365Labs without prior authorization from 365Labs will be considered an unauthorized return, and you will not receive a refund or credit for the product and 365Labs will not ship the product back to you. For instructions about requesting a return, see “How to Return a Product” below. All approved returns must be received by 365Labs within 30 calendar days of the return approval date otherwise the amount of refund or credit may be reduced or eliminated if the product(s) are returned late.

Exceptions to 365Labs’s 30-Day Return Period:

• Software may not be returned at any time, unless the software being returned is:

1. Application software or operating systems installed by 365Labs on a returnable system which is being returned within the applicable return period; or
   2. Media-based software that is unopened and still in its sealed package or, if delivered electronically, software that you have not accepted by clicking to agree to applicable terms. 

• Additional products not eligible for return at any time:

1. 365Labs branded products
2. 365Labs GISMO™and GISMO-branded products
3. Non-365Labs-branded enterprise hardware and software products
4. Customized products

• Unless you have specifically agreed otherwise in your written agreement with 365Labs, there is no right of return for software purchased under any type of volume license arrangement.
• 365Labs reserves the right to deny any returns in circumstances involving repeated returns, violation of the 365Labs Terms of Sale or other impermissible activity.

Restocking Fees: Unless the product is defective or the return is a direct result of a 365Labs error, 365Labs may charge a restocking fee of 15% of the purchase price paid less shipping and handling, plus any applicable sales tax, which would be applied through a total reduced refund or credit.

Promotional Items: If you return a purchased item that qualified you for a discount, promotional item or promotional card (for example, buy a service, get a computer half off; buy a computer, get a free printer; buy a TV, get a promotional gift card) and either (i) do not also return the discounted or promotional item or (ii) have already redeemed the promotional card, 365Labs may deduct the value of the discount, promotional item or redeemed card from any refund or credit you receive for the return of the purchased item. 

How to Return a Product: Before returning a product, you MUST first contact 365Labs customer service and obtain a Credit Return Authorization (CRA) number before the end of the applicable return period. 365Labs will not accept returns without a CRA number. To find the appropriate phone number or to send an email to customer service to request a CRA number, go to www.365Labs.com/contact/ or see the “Contacting 365Labs” or “Getting Help” section of your customer documentation.

NOTE: You MUST follow these steps when returning a product:  

• Ship the product to 365Labs. Please note that all approved returns must be received by 365Labs within 30 days of the date that 365Labs issues the return authorization and instructions.  
• Ship back allproducts you are seeking to return to 365Labs and for which you received a CRA number. For partial returns, your refund or credit may be less than the invoice or individual component price due to bundled or promotional pricing or any unadvertised discounts or concessions.
• Return the products in their original packaging, in as-new condition, along with any media, documentation and any other items that were included in your original shipment.
• For customers returning a TV, the TV must be returned in the original packaging it was received in (including box and protective cushioning). If you do not have the original packaging, you must provide separate packaging.
• For commercial customers, you must ship the products at your expense, and make sure the shipment is insured, or accept the risk of loss or damage during shipment.

Upon receipt of your return, 365Labs will issue a credit or refund of the purchase price paid, which may be reduced by the amount of shipping and handling fees and any applicable restocking fees subject to this policy.

Note: Before you return the product to 365Labs, make sure to back up any data on the hard drive(s) and on any other storage device in the product. Remove all confidential, proprietary and personal information as well as removable media such as flash drives, CDs and PC Cards. 365Labs is not responsible for any confidential, proprietary or personal information; lost or corrupted data; or damaged or lost removable media that may be included with your return.

Systems configured with an Intel® 8th Gen or later CPU are designed to run optimally with the Microsoft Windows 10 operating system. Removing the factory-installed operating system to run a non-Windows 10 operating system (such as Windows 7 or Windows 8) may make the product ineligible for return to 365Labs for a refund or cause system instability and performance issues that may not be covered by your warranty, support, or service agreements.

365Labs Auto-Renewal Subscription Terms 

365Labs offers a variety of software and services on an auto-renewing subscription basis. Auto-renewal ensures continued use of your product, service, or other offering until you choose to cancel, with no need to keep track of renewal dates. 365Labs will automatically renew your subscription using the payment method on file until you cancel. Most subscriptions are offered on either an annual or monthly basis. For subscriptions that auto-renew less frequently than monthly, you will receive a reminder notice via email prior to each renewal charge. You must opt out of automatic renewal of your subscription prior to the renewal date in order to avoid renewal charges.

Please click on the applicable title below for the specific auto-renewal terms for your subscription, including renewal dates, cancellation methods, and any fees, such as early termination fees, that may apply in some circumstances for some subscriptions.

EndPoint Software Terms & Conditions

THESE TERMS AND CONDITIONS (THE “TERMS”) APPLY TO SUBSCRIPTION BASED LICENSES FOR THE ENDPOINT SOFTWARE IDENTIFIED BELOW. PLEASE READ THESE TERMS CAREFULLY BEFORE ACCEPTING THESE TERMS OR ACCESSING OR USING THE SOFTWARE. BY PLACING AN ORDER FOR THE SOFTWARE OR ACCESSING OR USING THE SOFTWARE, YOU ACCEPT AND AGREE TO THESE TERMS. IF YOU DO NOT AGREE TO THESE TERMS, OR DO NOT HAVE THE AUTHORITY TO ACCEPT THESE TERMS, DO NOT SUBSCRIBE TO, ACCESS OR USE THE SOFTWARE.

FOR PURPOSES OF THESE TERMS, “ENDPOINT SOFTWARE” INCLUDES ANY OF THE FOLLOWING CURRENTLY AVAILABLE SOFTWARE AS A SERVICE OFFERINGS THAT YOU SUBSCRIBE TO WITH 365LABS:

· VMWARE WORKSPACE ONE
· VMWARE CARBON BLACK
· CARBONITE
· ABSOLUTE
· SECUREWORKS MANAGED SERVICES
· NETSKOPE

1.   Your use of the EndPoint Software and any changes or additions to the EndPoint Software (collectively, the “Software”) is subject to the 365Labs Cloud Solutions Agreement located at www.365Labs.com/cloudterms(the “Cloud Solutions Agreement”).

   2.    In addition to these Terms and the Cloud Solutions Agreement, each Software solution is subject to a separate software license agreement that will be presented to You during the onboarding, installation or provisioning process. By accepting these Terms, You hereby accept and agree to comply with the terms of the applicable software license agreement.

   3.    You consent to the collection and transfer of Your personal information to provide You with the Software. We will not access or use Your personal information except as necessary to maintain or provide the Software, or as necessary to comply with applicable law or regulation, legal process or a binding order of a government body. We will only use Your personal information in accordance with 365Labs’s Privacy Statement, which you can access at www.365Labs.com/learn/us/en/uscorp1/policies-privacy-country-specific-privacy-policy.

   4.    ProSupport for the Software may be available for purchase from 365Labs and is subject to the Service Description located at www.365Labs.com/servicecontracts/global.   

   5.    These Terms commence on the date you place your order and shall continue until all Software subscriptions and associated services (if any) have expired or been terminated. Each Software subscription will continue for the term applicable to Your order and will automatically renew in accordance with these Terms unless Your subscription is otherwise cancelled or terminated. Auto-renewal ensures continued use of the Software until You choose to cancel, with no need to keep track of renewal dates. 365Labs will automatically renew your subscription using the payment method on file until you choose to cancel all or part of your subscription.

   6.    Each Software subscription will be billed in accordance with the applicable option described in the table below and selected by You at the time of purchase. On the renewal date, your subscription will be automatically renewed for another term equal in duration to the initial term. You must cancel your subscription prior to the applicable renewal date in order to avoid renewal charges.

For Annual Subscriptions:

• The Annual Renewal Datefor Your Software subscription will be one year from the coverage start date listed on your invoice.
• You will be charged immediately for the first year.
• The payment method You designated at the time of purchase will be used for the annual renewal charge and any additions. You may update Your payment method at any time.
• Subsequent Software subscription purchases will be prorated to the coverage end date and charged on the following 15th of the month (e.g., if you add seats on August 30th, you will be charged the prorated amount on September 15th).
• Your subscription will automatically renew each year on the Annual Renewal Dateand you will be charged on the following 15th of the month.
• Items removed from your Software subscription prior to the Annual Renewal Datewill not be included in the next annual renewal.
• 35 days and 15 days prior to each Annual Renewal Date, 365Labs will notify you of the exact amount of the renewal charge via email. Note that the renewal amount may change if you add or remove items from your subscription after the notice.

You can cancel the entire subscription at any time. Cancellation must be requested prior to the Annual Renewal Date to avoid the charge.

For Monthly Subscriptions:

• The Monthly Renewal Datefor your Software subscription will be the 15th of every month.
• The payment method You designated at the time of purchase will be used for the monthly charge. You may update Your payment method at any time.
• Your initial purchase will be prorated to the next Monthly Renewal Date (the following 15th of the month) and the prorated amount will be charged immediately.
• Subsequent Software purchases will be prorated to and charged on the next Monthly Renewal Date.
• Your subscription will automatically renew, and you will be charged every month on the Monthly Renewal Dateuntil you cancel.
• Items removed from your Software subscription prior to the Monthly Renewal Date will not be included in the next Monthly Renewal.

You may request cancellation of your entire monthly subscription at any time. Cancellation must be requested prior to the Monthly Renewal Date to avoid the next charge.

7. Cancellation and management of your Software subscription is available within the Online Portal or through 365Labs_Data_Software_Assist@365Labs.com

   8.    To update your payment method, change your address or view billing history, use Billing Accounts within the 365Labs Digital Locker. Please use the 365Labs.com account associated with your billing email address to login.

   9.    365Labs reserves the right to cancel orders as a result of pricing or other errors.

   10.    You may contact your 365Labs sales representative for assistance with obtaining a copy of any of the documents referenced herein.

Mozy Backup and Recovery Subscription with Auto-Renewal

Mozy Backup and Recovery Subscription with Auto-Renewal

Auto-renewal ensures continued use of Mozy Backup and Recovery until you choose to cancel, with no need to keep track of renewal dates. 365Labs will automatically renew your subscription using the payment method on file until you choose to cancel all or part of your subscription.

On the renewal date, your subscription will be renewed for another term. You must cancel your subscription prior to the renewal date in order to avoid renewal charges.

For Annual Subscriptions:

• The Annual Renewal Date for your Mozy Backup and Recovery subscription will be one year from the coverage start date listed on your invoice.
• You will be charged immediately for the first year.
• The payment method you designated at the time of purchase will be used for the annual renewal charge and any additions. You may update your payment method at any time.
• Subsequent Mozy purchases will be prorated to the coverage end date and charged on the following 15th of the month (e.g., if you add seats on August 30th you will be charged the prorated amount on September 15th).
• Your subscription will automatically renew each year on the Annual Renewal Date and you will be charged on the following 15th of the month.
• Items removed from your Mozy Backup and Recovery subscription prior to the Annual Renewal Date will not be included in the next annual renewal.
• 35 days and 15 days prior to each Annual Renewal Date, 365Labs will notify you of the exact amount of the renewal charge via email. Note that the renewal amount may change if you add or remove items from your subscription after the notice.
• You can cancel the entire subscription at any time. Cancellation must be requested prior to the Annual Renewal Date to avoid the charge.

For Monthly Subscriptions:

• The Monthly Renewal Date for your Mozy Backup and Recovery subscription will be the 15th of every month.
• The payment method you designed at the time of purchase will be used for the monthly charge. You may update your payment method at any time.
• Your initial purchase will be prorated to the next Monthly Renewal Date (the following 15th of the month) and the prorated amount will be charged immediately.
• Subsequent Mozy purchases will be prorated to and charged on the next Monthly Renewal Date.
• Your subscription will automatically renew and you will be charged every month on the Monthly Renewal Date until you cancel.
• Items removed from your Mozy Backup and Recovery subscription prior to the Monthly Renewal Date will not be included in the next Monthly Renewal.
• You may request cancellation of your entire monthly subscription at any time. Cancellation must be requested prior to the Monthly Renewal Date to avoid the next charge.

Cancelling Auto-Renewal for Mozy Back-up and Recovery

Cancellation and management of your subscription is available within the Online Portal or through mozyassist@365Labs.com.

To update your payment method, change your address or view billing history, use Billing Accounts within the 365Labs Digital Locker. Please use the 365Labs.com account associated with your billing email address to login.

If you have purchased service(s) from 365Labs or a 365Labs reseller, your quote, order acknowledgement, invoice or receipt will include the name of the service(s) that you purchased. If you do not have your invoice, then request a copy of your invoice.

Services relating to GISMO™ products are governed by GISMO™ terms and conditions available here.

Support Services provide technical support and instructions on how to request a warranty repair or replacement due to a manufacturing defect on certain 365Labs products. U.S. and Canadian customers may review 365Labs’s limited 365Labs-branded hardware warranty. For customers in Mexico, Central and South America, please consult your location-specific Commercial Terms of Sale to locate your warranty information. You can also check your hardware specific warranty by selecting your location flag on the lower right corner of that page and inputting your hardware Service Tag. If you purchased hardware, software, peripherals, or accessories manufactured by a third party, those products will generally be subject to a third-party manufacturer’s warranty or guarantee, which will have been communicated to you upon receipt of the product.

If no Service Description or Offer Specification is shown below, please contact your local 365Labs Services Sales Representative to confirm the availability of this service in your location.

Unless otherwise agreed upon in writing by you and 365Labs, 365Labs’s Commercial Terms of Sale govern the sale of 365Labs products, software and services to commercial and public customers, including those customers who purchase their 365Labs products, software and services through a reseller.

However, certain of 365Labs’s products, software and services are sold pursuant to separate sales terms tailored to such offerings. Please review your invoice, order acknowledgement or separately-signed agreement with 365Labs carefully in order to confirm the terms and conditions of sale applicable to your purchase. If you do not have your invoice, then a copy of your invoice can be requested here. For additional assistance locating your terms and conditions on the 365Labs.com website or to request a hard copy of your agreement(s) with 365Labs, contact 365Labs Technical Support or your sales representative.

Cloud Service Provider Rider to the CTS 

This Cloud Service Provider Rider (this “CSP Rider”) applies exclusively to authorized and Titanium, Platinum and Gold tier participants in the 365Labs Technologies Partner Program – Cloud Service Provider Track [or successor designation] (“CSP Partner”) in the United States and Canada.

This CSP Rider applies to the purchase and use of 365Labs  and/or 365Labs branded products and services ordered by CSP Partner from  Corporation (“”) or 365Labs Marketing L.P. (“365Labs”) (collectively “Suppliers”) for use in providing a Service Offering (as defined below) (the “Products”). When CSP Partner orders the Products as a “Customer” under either (a) an existing, signed master agreement with  or 365Labs that does not contain a Service Provider License grant; or (b) the online Commercial Terms of Sale, including any 365Labs or  EULA referenced therein (collectively, the “Agreement”), then this CSP Rider serves to amend and supplement the terms of such Agreement as set forth herein with respect to such orders. Except as set forth herein, all terms of the Agreement and any applicable 365Labs or  EULA shall remain in effect. This CSP Rider does not apply to any third party software or its associated EULA.

1. Additional Definitions.
A. “Client” means a third party who procures and receives the Service Offering from Customer.
B. “Service Offering” means Customer’s software-as-a-service (“SaaS”), infrastructure as a service (“IaaS”), platform as a service (“PaaS”) hosted, turn-key, on-demand, service bureau or similar IT as a service offering.

2. Service Provider License Grant. Suppliers grant to Customer a non-exclusive, non-transferable (except as specified in this Agreement) license to use the Software and the Documentation during the period of the license in connection with Customer’s delivery of the Service Offering, and subject to the provisions of the Agreement. Suppliers also authorizes Customer to grant the Clients remote or limited access to and the limited right, during the period in which Customer is providing the Service Offering to its Client(s), to use Software solely in order to utilize, process, and manipulate the information, data and records of the Client(s) stored on, controlled by, or accessed through the Products as a part of the Service Offering. Customer shall not, and shall require its Clients to not make any other use thereof whatsoever. Customer shall be responsible for any access to and use of Products by its Clients as if such access was by Customer. Licenses granted to Customer may, as indicated on the Supplier quote be perpetual or term based, will be for use of object code only, and will commence on either delivery of the physical media or the date Customer is notified of availability for electronic download. Use of Software may require Customer to complete Supplier’s then current product registration process, if any, to obtain and input an authorization key or license file.

365Labs Cloud Solutions Agreement

This Cloud Solutions Agreement between you and 365Labs, governs your use of and access to the Solution. The term “Agreement” refers collectively to these terms and conditions and, as applicable, (i) the Solution Description for the applicable Solution; (ii) if you purchased directly from 365Labs, any order form referencing or incorporating the Solution Description (an “Order Form”); (iii) the Cloud Solutions Agreement Acceptable Use Policy (“AUP”); and (iv) any applicable Regional Addendum that will govern the use of and access to the Solution by Customers and End Users outside of the United States (“U.S.”).

This Agreement is effective upon your (a) execution of a Solution Description or an Order Form; (b) acceptance of these terms pursuant to an online or offline process; (c) accessing or using the Solution; or (d) acceptance of terms between you and a reseller that reference this Agreement. “You,” “your” or “Customer” means the end-user entity which you represent, and which may be further identified in the applicable Solution Description, Order Form, End User Acknowledgment Form or online order process, and includes any of your affiliates that expressly agree to, or are otherwise legally bound by, this Agreement. “365Labs,” “us,” “we” or “our” means 365Labs Marketing L.P., on behalf of itself and its suppliers and licensors, or the 365Labs entity identified on your Solution Description or Order Form and includes any 365Labs affiliate with which you place an order for the Solution. Your purchase of the Solution is solely for your internal business use and may not be resold.

1. Definitions

“Activation Instructions” means any instructions, user IDs, software license keys or passwords that 365Labs or the applicable Cloud Partner provides you to enable you to activate or access a specific Solution.

“Confidential Information” means (i) data you transmit to us or store as part of the Solution or information provided to us on an Order Form; (ii) 365Labs pricing and other Solution terms, Activation Instructions, marketing and sales information, know-how, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), or other proprietary information or technology provided to you (including Software); and (iii) Trade Secrets or any information designated as Confidential. Information developed without reference to another party’s Confidential Information, or that is a part of or enters the public domain or otherwise is made available to a party without a violation of confidentiality, will not be Confidential Information.

“Customer Content” means any information or data provided by you or your End Users in connection with your or your End Users’ use of the Solution, including any text, software, music, sound, photographs, graphics, video, messages, files, attachments or other materials transmitted to us or stored or used on the Solution.

“End User” means each individual or entity that Customer has authorized to access and use a Solution, including any individual or entity that purchases a Customer Solution.

“Intellectual Property” means all patents, applications for patents, copyrights, moral rights, author’s rights, rights of publicity, mask works, Trade Secrets, know-how, contract rights, licensing rights and/or any other intellectual or proprietary rights recognized by any jurisdiction, whether now existing or hereafter arising. Intellectual Property also includes corporate names, trade names, trademarks, service marks or other proprietary designations.

“Services” means any and all services performed by us, a Cloud Partner, or a combination thereof as described in one or more Solution Descriptions.

“Software” means any software, library, utility, tool or other computer or program code, in object (binary) or source-code form, as well as the related documentation, provided by us in connection with a Solution. Software includes software locally installed on your systems and software accessed through the Internet or by other remote means including websites, portals and cloud-based solutions to utilize a Solution in accordance with this Agreement.

“Solution” means the combination of the Services performed and Software provided by us or our Cloud Partner to you pursuant to a Solution Description. Solutions include any Partner Solutions.

“Solution Description” means (i) a statement of work, service description, solution description or other agreement that references this Agreement or Cloud Partner Terms or (ii) a specification sheet or online description referenced in an Order Form .

“Third-Party Products” means any non-365Labs or non-Cloud Partner software or services provided, made available or otherwise used in connection with the Solution, including any Customer Solution or any other Customer or third-party provided software, hardware or services.

“Trade Secret” means any 365Labs or Cloud Partner information not commonly known or available to the public, which (i) derives economic value, actual or potential, from not being generally known to and not being readily ascertainable by proper means by other persons who can obtain economic value from its disclosure or use, and (ii) is the subject of efforts that are reasonable under the circumstances to maintain its secrecy.

1. Quotes, Ordering and Payment

If you purchased a Solution through a reseller, the terms and conditions of sale (including pricing) for the purchase will be as agreed between you and the reseller. This Section 2 applies to direct sales only.

We will charge amounts for Solutions as set forth in the applicable Solution Description or Order Form or, if not specified, the current list pricing provided on our website. Quoted prices will remain in effect only until the expiration date of the quote. All orders are subject to our acceptance. The number of systems, units (e.g., mailboxes, recipients, minutes, etc.) and End Users for which you have purchased Solution(s) is indicated on the Order Form. Usage in excess of these numbers or for a period of time longer than the Term will result in additional costs. The additional costs per billing period will be determined by multiplying the excess usage by the contracted fee per system, unit or End User in the original Order Form. Payment must be made by credit card, wire transfer or other prearranged payment method unless we agree in writing to credit terms. Solutions are invoiced in accordance with the applicable Solution Description or Order Form beginning on the Activation Date. We, or our local affiliate(s), will invoice you locally, per the billing address(es) you provide, in the applicable currency. Invoices are due and payable within 30 days from the invoice date. We reserve the right to charge interest at the rate of 1.5% per month against overdue amounts or the maximum rate permitted by law, whichever is less. Late payment fees are recalculated every 30 days based on your current outstanding balance, which may include any previously accrued and unpaid late payment fees. Customer will pay all reasonable legal fees (including reasonable attorney’s fees) and costs associated with collection of overdue amounts.

The charges stated in any Order Form or invoice will include all duties, levies or any similar charges and will exclude VAT or equivalent sales or use tax. You are responsible, on behalf of yourself and your affiliates, for the payment of all taxes and fees assessed or imposed on the Solution in any geography in which you or an End User receives the benefit of the Solution, including any sales, use, excise, value-added or comparable taxes, but excluding taxes for which you have provided a valid resale or exemption certificate. Should any payments become subject to withholding tax, you or your affiliates will deduct these taxes from the amount owed and pay the taxes to the appropriate tax authority in accordance with applicable tax laws. You will promptly provide us with receipts or documents evidencing these tax payments. We are not liable for any withholding tax, penalty or interest due as a result of your failure to withhold any applicable tax.

1. Activation

With respect to certain Solutions, after our receipt and acceptance of an order (whether placed directly with 365Labs or through a reseller), you will receive Activation Instructions. The date Activation Instructions are transmitted or, in the event Activation Instructions are not required, the effective date of the applicable Solution Description or the date an online order is executed is the “Activation Date.” You are required to provide, maintain and monitor one dedicated email address for the receipt of notices and other communications related to the Solution.

4. Term; Renewal

The “Term” for any Solution begins on the Activation Date and extends for the period indicated in the Solution Description or Order Form (or, if you purchased through a reseller, the applicable period in your order with the reseller). If you purchased directly from 365Labs, unless you decline auto-renewal in writing at least thirty (30) days prior to the expiration of the Term or unless auto-renewal is explicitly disclaimed in a Solution Description or an Order Form, we may automatically renew this Agreement and the related Solution(s) for a successive Term at our then-current list price. By continuing to use the Solution(s) beyond the expiration of the applicable Term, we may renew this Agreement and the related Solution(s) in our discretion for a successive Term at our then-current list price. If you purchased through a reseller, the terms and conditions of renewal for the purchase will be as agreed between you and the reseller.

1. Termination

Either party may terminate this Agreement if the other party commits a material breach and the breach is not cured within ninety (90) days of receipt of written notice describing the nature of the breach. If you purchased multiple Solutions, termination of an individual Solution will not terminate this Agreement unless the circumstances giving rise to termination generally affect all purchased Solutions. Notwithstanding the foregoing, we may terminate this Agreement or the affected Solutions upon written notice to you, and without further liability if (i) you are delinquent on your payment obligations for 30 days or more ; (ii) you violate the AUP or the Cloud Partner’s AUP; (iii) a change in our relationship with a third-party Software or technology provider or Cloud Partner has had a material adverse effect on our ability to provide the Solution; (iv) you declare bankruptcy, are adjudicated bankrupt or a receiver or trustee is appointed for you or substantially all of your assets; (v) you are or you are controlled by a direct competitor of 365Labs, or (vi) you purchased through a reseller and as applicable: the agreement between you and such reseller expires or is terminated, the agreement between 365Labs and such reseller expires or is terminated or your reseller is delinquent on its payment obligations to 365Labs.

Upon expiration of the Term for all Solutions purchased pursuant to this Agreement, either party may terminate this Agreement by providing 30 days written notice. Upon termination of this Agreement, all rights and obligations under this Agreement will automatically terminate except for rights of action accruing prior to termination, payment obligations and any obligations that expressly or by implication are intended to survive termination.

1. Assignment

You may not assign this Agreement or any respective rights or obligations to a third-party without our prior written consent. We may assign, sell or otherwise transfer our rights under this Agreement upon our sale of a business, product line or substantially all of our assets, provided the transferee agrees to perform the obligations under this Agreement. We may subcontract or delegate in whole or in part this Agreement, provided that we remain responsible for the performance of the Solution. For purposes of this Agreement, any change of control will be deemed an assignment.

1. Proprietary Rights

Except for information created or otherwise owned by you or licensed by you from third-parties, including all information provided by you to us through the Solution or for use in connection with the Solution, all right, title, and interest in the Intellectual Property embodied in the Solution, including the know-how and methods by which the Solution is provided and the processes that make up the Solution, will belong solely and exclusively to us or our licensors or our Cloud Partners, and you will have no rights in any of the above, except as expressly granted in this Agreement. The Services and the Software used to provide the Solution embody valuable Trade Secrets and proprietary rights of 365Labs and/or our licensors or Cloud Partners and are protected by copyright laws and international copyright treaties, as well as other intellectual property laws and treaties. Any Intellectual Property developed by us during the performance of the Solution will belong solely and exclusively to us and/or our licensors or Cloud Partners.

8. Cloud Partners

Should you purchase a Solution from 365Labs that is performed by a member of 365Labs’s cloud partner program (a “Cloud Partner”) your Solution (a “Partner Solution”) may be governed by additional terms and conditions that will be presented on your Order Form or during the online order process (“Cloud Partner Terms”).

1. Customer Solutions

If you provide End Users any non-365Labs hardware, software or services (including management services) with, through or using the Solution (a “Customer Solution”), you must provide your End Users with this Agreement and your End Users must agree that their use of the Customer Solution is subject to the terms and conditions of this Agreement. You are responsible for any Customer Solution, including (i) controlling the access to, and use and security of, the Customer Solution and the data residing in or processed via the Customer Solution, including the use of appropriate encryption; (ii) maintaining the security of the passwords and other measures used to protect access to any end-user account; (iii) properly configuring the Solution to work with the Customer Solution and taking your own steps to maintain appropriate back-up of the Customer Solution, including the use of appropriate archiving ; and (iv) properly handling and processing notices claiming that the Customer Solution violates a person’s rights. Customer agrees to indemnify and hold 365Labs harmless from and against any claims by End Users using the Customer Solution against 365Labs relating to the Customer Solution.

1. Suspension, Deletion and Modification

We may suspend all or part of the Solution or your access to or use of data stored in the cloud (i) if you (or the reseller, from which you purchased) are delinquent on payment obligations for 15 days or more; (ii) upon receipt of a subpoena or law-enforcement request; or (iii) when we have a commercially reasonable belief that you have breached this Agreement or that your use of the Solution poses an imminent security risk or may subject 365Labs to liability . We will use commercially reasonable efforts to give you at least 12 hours’ notice of a suspension unless we (or the Cloud Partner) determine in our commercially reasonable judgment that a suspension on shorter or contemporaneous notice is necessary to protect us, the Cloud Partner or our customers.

For customers purchasing a 365Labs-delivered Solution, we may delete your Customer Content (a) 60 days following any termination by us pursuant to Section 5 of this Agreement, or (b) if you (or the reseller, from which you purchased) f ail to renew an applicable Solution Description within 60 days of expiration. For customers purchasing a Partner Solution, the retention and deletion of Customer Content will be governed by the applicable Cloud Partner Terms.

If we are providing the Solution in connection with a trial program such as a demo, evaluation, pilot or proof of concept (a “Trial”), immediately following the conclusion of the Trial we may delete Customer Content stored in the cloud without any obligation to return Customer Content to you. If, however, immediately following the conclusion of the Trial you renew the Solution for the standard term, we will keep Customer Content in the cloud in accordance with this Agreement.

We or the Cloud Partner may modify the functionality or features of the Solution at any time, provided that the modification does not materially denigrate the functionality of the Solution (as described in the applicable Solution Description) during the Term. We or the Cloud Partner will not be liable to you or any third-party for any such modification. From time to time, we or the Cloud Partner may change the location where the Solution is provided; provided, however, we or the Cloud Partner will remain responsible for the delivery of the Solution.

It may be necessary for us or the Cloud Partner to perform scheduled or unscheduled repairs or maintenance, or remotely patch or upgrade the Software, which may temporarily degrade the quality of the Solution or result in a partial or complete outage of the Solution. Although we cannot guarantee that you will receive advance notice of repairs or maintenance, we will endeavor to provide at least 7 days’ notice of scheduled updates and patches or such notice as is set forth in the applicable Cloud Partner Terms.

1. License

To the extent Software is provided as a part of the Cloud Solution, such Software is provided subject to the license agreement that accompanies the Software, and in the absence of such license, 365Labs-branded Software is subject to 365Labs’s End User License Agreement located at 365Labs.com. Customer shall be liable for any breach of this Agreement by any End User.

1. Privacy

For information about our privacy practices, please read our global and country specific privacy policies at https://www.365labs.com/365-labs-privacy-statement/. These policies explain how we treat your personal information and protect your privacy. If your Solution Description specifies the region in which your data will be stored, we will not move the data from the specified region without notifying you other than as required by law or pursuant to lawful requests from government entities. If you purchase a Partner Solution, the privacy policy set forth in the applicable Cloud Partner terms will apply.

1. Customer Obligations

You are responsible for keeping your account permissions, billing and other account information current. If you purchased directly from 365Labs, you must pay when due the amounts for the Solution stated in the applicable Solution Description or other agreement between you and 365Labs. If you purchased from a reseller, you must pay when due the amounts for each Solution stated in the applicable agreement between you and the reseller. Certain Solutions may contain features designed to interoperate with Third-Party Products or Cloud Partner services. If the Third-Party Product or Cloud Partner services are no longer made available by the applicable provider, we may stop providing the related Solution feature and you will not be entitled to any refund, credit or other compensation. In our performance of the Solution, we may obtain information related to your use of the Solution. You agree that we may use such information in an aggregated, anonymized form to assist in improving and optimizing various aspects of the Solution or in support of generic marketing activities related to the Solution.

You represent and warrant that you have obtained all rights, permissions and consents necessary to use and transfer any Customer data or End User data within and outside of the country in which you are located in connection with our (or our Cloud Partners’) performance of the Service or your use of the Software (including providing adequate disclosures and obtaining legally sufficient consents from your employees, agents, contractors and End Users). You are responsible for the data and software you use or store in the cloud, including its maintenance, operation and compatibility in and with the cloud, and any third-party claims regarding the same. You understand and agree that neither 365Labs nor the Cloud Partners have control over the content of the data processed and that 365Labs (or the Cloud Partner, as applicable) performs the Services on your behalf. If you or an End User transmits data to a third-party website or other provider that is linked to or made accessible by the Solution, you and the End User consent to our or the Cloud Partners, as applicable, enabling such transmission, but such transmission and any related interaction is solely between you and the third-party website or provider and may be subject to additional terms and conditions provided by the third-party website or provider. Neither 365Labs nor the Cloud Partners will be responsible for any disclosures, modifications or deletions of your data resulting from any such transmission. Neither 365Labs nor the Cloud Partners make any warranties about, or will have any liability for, such third-party websites or providers.

You must use reasonable security precautions in connection with your use of the Solution and comply with the AUP and laws and regulations applicable to your use of the Solution. You must cooperate with our reasonable investigation of Service outages, security issues and any suspected breach of this Agreement. We may revise the AUP to add or modify restrictions on use of the Solutions, provided that the changes are commercially reasonable, consistent with industry norms and apply to all customers.

You will be deemed to have taken any action that you permit, enable or facilitate any person or entity to take related to this Agreement or any use of any Solution. You are responsible for the use of the Solutions by any End User and any person who gains access to your or any End User’s data or the Solution as a result of your failure to use reasonable security precautions, even if the use was not authorized by you. You will ensure that End Users comply with your obligations under this Agreement and that the terms of your agreement with each End User are consistent with this Agreement and are legally enforceable. If you become aware of any violation of your obligations under this Agreement by an End User, you will immediately terminate such End User’s access to the Solution.

You are responsible for selecting, obtaining and maintaining any equipment and ancillary services needed to connect to, access or otherwise use the Solution and for ensuring that the equipment is compatible with the Solution. You are responsible for properly configuring and using the Solution and taking your own steps to maintain appropriate security, protection and back-up of your data and software, including the use of appropriate encryption, back-up and archiving. You acknowledge that the Solutions are not intended to replace and do not replace the need for you to maintain regular data back-ups or redundant data archives. You are responsible for maintaining back-up copies of your data that may be stored or processed by us in the course of our provision of Solutions. You understand and agree that we are not responsible for any loss or corruption of your data or software. You remain responsible for properly handling and processing notices claiming that your data or software violates a person’s rights.

In connection with certain Solutions, we may provide you with hardware, software, equipment or other property (“Equipment”). The Equipment is our sole property and we may immediately take possession of the Equipment following the termination or expiration of this Agreement. You will (a) keep the Equipment free and clear of any lien and not pledge as security or otherwise encumber the Equipment; (b) use the Equipment only to access the Solution and comply with our reasonable Equipment use instructions; (c) not remove, relocate or move the Equipment from the specific location where it was first installed without our prior written approval; (d) provide adequate, secure and proper space at your facility to install Equipment, it being agreed that we are not obligated to install Equipment in poorly ventilated, air conditioned or inadequately maintained room(s); (e) be responsible for risk of loss and damage to the Equipment equal to the present value of the Equipment’s fair market value; (f) not remove, cover or alter plates, labels or other markings on the Equipment; and (g) provide a secure link such as a static IP address for the Equipment.

1. Customer License Grant to 365Labs

Customer grants to 365Labs (and the Cloud Partners, if applicable) the necessary rights to operate any Customer-provided software, including a non-exclusive, royalty-free license (which shall terminate upon termination of the applicable Solution) to install, deploy, use, execute, reproduce, display, perform and run such software (including, without limitation, guest operating systems and application programs), as are reasonable or necessary for 365Labs or the Cloud Partner, if applicable, to perform or provide the Solution. As between you and 365Labs or you and the Cloud Partner, you are responsible for providing, updating, uploading and maintaining any Customer-provided software and paying all fees associated therewith, including any software license and maintenance fees. If, in order to provide the Solution, we or our Cloud Partner, as applicable, are required to install, patch, manage or otherwise use or access software that you license from a third-party software vendor, then you represent and warrant that you have obtained a written license agreement with the vendor that permits us to perform these activities.

Customer grants to 365Labs or 365Labs’s Cloud Partner, as applicable, a non-exclusive, royalty-free license to access, use, reproduce, modify, perform, display and distribute Customer and End User data as is reasonable or necessary for 365Labs or Cloud Partner to perform or provide the Solution. It is Customer’s responsibility to obtain, at its own expense, all licenses, consents and approvals required to grant to 365Labs (or 365Labs’s Cloud Partner) the rights and licenses in this Agreement.

1. High-Risk Disclaimer

The Solutions may not be used in hazardous environments requiring fail-safe performance, such as in the operation of nuclear facilities, aircraft navigation or communication systems, air traffic control, weapons systems, life-support machines or any other application in which the failure of the Solutions could lead directly to death, personal injury or environmental or property damage (collectively, “High-Risk Activities”).

1. Limited Warranty

THE SOLUTION, TOGETHER WITH ALL THIRD-PARTY PRODUCTS AND OPEN SOURCE SOFTWARE PROVIDED BY 365LABS, IS PROVIDED “AS IS.” 365LABS (INCLUDING ITS AFFILIATES, CONTRACTORS, AND AGENTS, AND EACH OF THEIR RESPECTIVE EMPLOYEES, DIRECTORS, AND OFFICERS), ON BEHALF OF ITSELF AND ITS LICENSORS, CLOUD PARTNERS AND SUPPLIERS (COLLECTIVELY AND TOGETHER WITH 365LABS, THE “365LABS PARTIES”), MAKES NO EXPRESS OR IMPLIED WARRANTY WITH RESPECT TO THE SOLUTION OR ANY OF THE SOFTWARE OR SERVICES INCLUDED THEREIN, INCLUDING BUT NOT LIMITED TO ANY WARRANTY (1) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SUITABILITY OR NON-INFRINGEMENT; (2) RELATING TO THE PERFORMANCE OF SOFTWARE (INCLUDING WHETHER THE SOFTWARE IS OR WILL BE SECURE, ACCURATE, COMPLETE, WITHOUT ERROR, OR FREE OF VIRUSES, WORMS OR OTHER HARMFUL COMPONENTS OR PROGRAM LIMITATIONS, OR THAT ANY ERRORS IN THE SOFTWARE WILL BE CORRECTED ) OR OUR PERFORMANCE OF THE SERVICES (INCLUDING WHETHER THE SERVICES ARE OR WILL BE UNINTERRUPTED, TIMELY OR WITHOUT ERROR) OR THE SECURITY OF THE SOLUTION OR WHETHER THE SOLUTION IS SUITABLE FOR HIGH-RISK ACTIVITIES; (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE SOLUTION (INCLUDING THE ACCURACY, QUALITY, RELIABILITY, SUITABILITY, COMPLETENESS, TRUTHFULNESS, USEFULNESS OR EFFECTIVENESS OF ANY REPORTS, DATA, RESULTS OR OTHER INFORMATION OBTAINED OR GENERATED BY YOU RELATED TO YOUR USE OF THE SOFTWARE ) OR THE RESULTS OF ANY RECOMMENDATION BY US; OR (4) ARISING OUT OF ANY COURSE OF DEALING OR TRADE USAGE. ANY WARRANTY ON A THIRD-PARTY PRODUCT IS PROVIDED BY THE PUBLISHER, PROVIDER OR ORIGINAL MANUFACTURER, WHETHER OR NOT SUCH THIRD-PARTY PRODUCT IS DESIGNATED BY US AS “CERTIFIED,” “APPROVED” OR OTHERWISE. IN THE EVENT WE ARE PROVIDING THE SOLUTION IN CONNECTION WITH A TRIAL, THE SOLUTION IS PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT ANY WARRANTIES.

WITH RESPECT TO YOUR OR END USER’S USE OF THE SOFTWARE, YOU ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION OF PROBLEMS CAUSED BY VIRUSES OR OTHER HARMFUL COMPONENTS, UNLESS SUCH PROBLEMS OR VIRUSES ARE THE DIRECT RESULT OF OUR GROSS NEGLIGENCE OR WILLFUL MISCONDUCT .

YOU AGREE THAT THE OPERATION AND AVAILABILITY OF THE SYSTEMS USED FOR ACCESSING AND INTERACTING WITH THE SOLUTIONS, INCLUDING TELEPHONE, COMPUTER NETWORKS AND THE INTERNET, OR FOR TRANSMITTING INFORMATION CAN BE UNPREDICTABLE AND MAY, FROM TIME TO TIME, INTERFERE WITH OR PREVENT ACCESS TO OR USE OR OPERATION OF THE SOLUTIONS. WE WILL NOT BE LIABLE FOR ANY SUCH INTERFERENCE WITH OR PREVENTION OF YOUR OR END USER’S ACCESS TO OR USE OF THE SOLUTIONS OR THE IMPACT SUCH INTERFERENCE OR PREVENTION MAY HAVE ON OUR ABILITY TO PERFORM THE SOLUTIONS.

1. Limitation of Liability

EXCEPT FOR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY WILL BE LIABLE FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES, OR FOR ANY (a) LOSS OF REVENUE, INCOME, PROFIT, SAVINGS OR BUSINESS OPPORTUNITY; (b) LOST OR CORRUPTED DATA OR SOFTWARE, LOSS OF USE OF A SYSTEM OR NETWORK, OR THE RECOVERY OF SUCH; (c) BUSINESS INTERRUPTION OR DOWNTIME; (d) LOSS OF GOODWILL OR REPUTATION; (e) SERVICES, SOFTWARE, DELIVERABLES OR THIRD-PARTY PRODUCTS NOT BEING AVAILABLE FOR USE; OR (f) THE PROCUREMENT OF SUBSTITUTE SOLUTIONS; ARISING OUT OF OR IN CONNECTION WITH THE SOLUTIONS PROVIDED HEREUNDER.

EXCEPT FOR INFRINGEMENT/MISAPPROPRIATION OF INTELLECTUAL PROPERTY, NEITHER PARTY’S TOTAL LIABILITY FOR ANY AND ALL CLAIMS ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT (INCLUDING WITH RESPECT TO ANY SOLUTIONS PROVIDED HEREUNDER) IN ANY 12–MONTH PERIOD WILL EXCEED THE TOTAL AMOUNT RECEIVED BY 365LABS FROM YOU (OR FROM YOUR RESELLER, IF YOU HAVE PURCHASED FROM A RESELLER) DURING THE PRIOR TWELVE (12) MONTHS OF THIS AGREEMENT FOR THE SPECIFIC SOLUTION GIVING RISE TO SUCH CLAIM(S).

THESE LIMITATIONS, EXCLUSIONS AND DISCLAIMERS WILL APPLY TO ALL CLAIMS FOR DAMAGES, WHETHER BASED IN CONTRACT, WARRANTY, STRICT LIABILITY, NEGLIGENCE, TORT OR OTHERWISE. THE PARTIES AGREE THAT THESE LIMITATIONS OF LIABILITY ARE AGREED ALLOCATIONS OF RISK CONSTITUTING IN PART THE CONSIDERATION FOR OUR SALE AND PERFORMANCE OF THE SOLUTION TO CUSTOMER, AND SUCH LIMITATIONS WILL APPLY NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LIABILITIES.

1. Confidentiality

Confidential Information may not be disclosed except to affiliates, employees, agents and subcontractors who “need-to-know” it and who have agreed in writing to treat the Confidential Information under terms at least as restrictive as those in this Agreement. Each party agrees to take the necessary precautions to maintain the confidentiality of the other party’s Confidential Information by using at least the same degree of care as such party employs with respect to its own Confidential Information of a similar nature, but in no case less than a commercially reasonable standard of care to maintain confidentiality. If a recipient is required by a court or government agency to disclose Confidential Information, the recipient will provide reasonable advance notice to other party before making the disclosure.

1. Indemnification

We will defend and indemnify you from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action that the Solution (excluding Third-Party Products and open source software) infringes or misappropriates that third-party’s Intellectual Property rights enforceable in the country in which the Solution is sold to you. In addition, if we receive prompt notice of a claim that, in our reasonable opinion, is likely to result in an adverse ruling, then we will, at our option, (i) obtain a right for you to continue using the Software or that allow us to continue performing the Services; (ii) modify the Software or Services to make them non-infringing; (iii) replace the Software or Services with a non-infringing equivalent; or (iv) refund any pre-paid fees for the allegedly infringing Services that have not been performed or provide a reasonably depreciated or pro rata refund for the allegedly infringing Software. Notwithstanding the foregoing, we will have no obligation under this Section 19 for any claim resulting or arising from (1) modifications of the Software or Services that were not performed by or on behalf of us; (2) the combination, operation or use of the Software or Services in connection with a Third-Party Product (the combination of which causes the claimed infringement); or (3) our compliance with your written specifications or directions, including the incorporation of any software or other materials or processes provided by or requested by you. This Section 19 states Customer’s exclusive remedies for any third-party Intellectual Property claim or action, and nothing in this Agreement or elsewhere will obligate us to provide any greater indemnity to Customer. This paragraph of Section 19 will not apply in the case of a Trial.

You will defend and indemnify the 365Labs Parties from and against any claims, damages, liabilities, losses, costs and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim or action relating to (a) your failure to obtain or maintain any appropriate license, Intellectual Property rights or other permissions, regulatory certifications or approvals associated with technology or data provided by you, or associated with Software, Third-Party Products or other components directed or requested by you to be installed or integrated as part of the Solution; (b) your breach of this Agreement or violation of any applicable law, regulation or order; (c) any inaccurate representation regarding the existence of an export license or any allegation made against the 365Labs Parties due to your violation or alleged violation of applicable Control Laws; (d) you providing any Excluded Data to 365Labs; (e) tax liabilities that are your responsibility pursuant to Section 2; (f) your use of the Solution; (g) the failure of any End Users to comply with your obligations under this Agreement; and (h) your provision of your own services, software, technology or solution.

Each party will defend and indemnify the other party against any third-party claim or action for personal bodily injury, including death, to the extent directly caused by the indemnifying party’s gross negligence or willful misconduct in the course of performing its obligations under this Agreement.

1. Indemnification Procedure

The indemnified party will (i) promptly notify the indemnifying party in writing of any claim; (ii) grant the indemnifying party sole control of the defense and resolution of the claim; and (iii) cooperate with the indemnifying party, at the indemnifying party’s expense, in defending and resolving the claim. Failure to provide prompt notice, however, will not affect the indemnifying party’s obligations to the extent the failure does not materially prejudice the indemnifying party’s ability to defend the claim.

In no event will an indemnifying party consent to the entry of any judgment or enter into any settlement with respect to any third-party claim without the prior written consent of the indemnified party (not to be unreasonably withheld) unless the judgment or settlement involves only the payment of money damages, without admission of fault, and expressly and unconditionally releases the indemnified party from all liabilities and obligations with respect to the claim.

1. Additional Information
2. Independent Contractor Relationship; No Third-Party Beneficiaries. The parties are independent contractors. No provision of this Agreement creates an association, trust, partnership or joint venture or imposes fiduciary duties, obligations or liability between you and us. Neither party will have any rights, power or authority to act or create an obligation, express or implied, on behalf of another party except as specified in this Agreement. This Agreement does not and is not intended to confer any rights or remedies, express or implied, upon any person other than the parties hereto.
3. Excused Performance. A party shall not be liable to the other for any delay in performing its obligations if the delay is caused by circumstances beyond its reasonable control, provided that the other party is promptly notified in writing. If the circumstance lasts longer than 30 days, then the other party may terminate, in whole or in part, this Agreement or the affected Service Agreement or Software Agreement by giving written notice to the delayed party. This Section shall not relieve either party of its obligations under this Agreement (including payment), but rather will only excuse a delay in performance.In the case of a delay arising under this Section, Customer acknowledges and agrees that its data may not be recoverable and accepts responsibility for re-entry of such data.
4. Export Compliance; Excluded Data. You will comply with all applicable import, re-import, export and re-export control laws, orders and regulations (“Control Laws”), including the Export Administration Regulations, the International Traffic in Arms Regulations (“ITAR”) and country-specific economic sanctions programs implemented by the Office of Foreign Assets Control. For clarity, you are solely responsible for compliance relating to the manner in which you choose to use the Solution, including the location from which you or your End Users access the Solution, your transfer and processing of data or software, the provision of data or software to End Users and any Control Laws of the country in which the Services or Software are rendered or received. Customer acknowledges that data processed in the Solution may contain personally identifiable information and associated metadata, and further agrees as data controller to comply with applicable privacy laws and/or regulations related to the provision of data. Customer Content, software or any Customer Solution that you provide in connection with the Solution will not (i) be classified or listed on the U.S. Munitions list; (ii) contain defense articles or defense services; (iii) contain ITAR-related data; or (iv) include protected health information subject to specific federal or state privacy or data security requirements (items (i) – (iv) collectively, the “Excluded Data”).
5. Regulatory Requirements. We are not responsible for determining whether any Third-Party Product used in the performance of the Solution satisfies the local regulatory requirements of the country in which the Third-Party Product is delivered, and we are not obligated to provide any Software or perform any Services where we become aware that the resulting Software or Services do not satisfy local regulatory requirements.
6. Revision to Online Terms. Any revisions to this Agreement (other than to the AUP) (“Revisions”) are not effective until the underlying Solution Description or Order Form is renewed or extended following the date we publish the Revisions on our website.
7. Order of Precedence. If there is a conflict between the terms of any of the documents that comprise this Agreement, the documents will prevail in the following order: (i) Regional Addendum (if any), (ii) the Solution Description or Order Form, (iii) these terms and conditions, the (iv) AUP; provided, however, that for Partner Solutions, as between Customer and the Cloud Partner, the Partner Terms will prevail over any of the terms of any of the documents that comprise this Agreement. Prevailing terms will be construed as narrowly as possible to resolve the conflict while preserving as much of the non-conflicting terms as possible, including preserving non-conflicting provisions within the same paragraph, section or sub-section.
8. Entire Agreement; Severability. This Agreement is the entire agreement between you and 365Labs with respect to its subject matter and supersedes all prior oral and written understandings, communications or agreements between you and 365Labs for the Solution. Except as otherwise provided for in Section 21.E, no amendment to or modification of this Agreement, in whole or in part, will be valid or binding unless it is in writing and executed by authorized representatives of both parties. If any provision of this Agreement should be found to be void or unenforceable, the provision will be stricken or modified, but only to the extent necessary to comply with the law, and the remainder of this Agreement will remain in full force and will not be terminated. In entering into this Agreement, neither Party is relying upon any representations or statements of the other that are not fully expressed in this Agreement; rather each Party is relying on its own judgment and due diligence and expressly disclaims reliance upon any representations or statements not expressly set forth in this Agreement.
9. U.S. Government Restricted Rights. The Software and documentation provided with the Software and Services are “commercial items” as that term is defined at 48 C.F.R. 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end-users acquire the Software and documentation with only those rights set forth herein. Contractor/manufacturer is 365Labs Products L.P., One Smart Way, Baton Rouge, LA 70810.
10. Governing Law. This Agreement and ANY CLAIM, DISPUTE, OR CONTROVERSY (WHETHER IN CONTRACT, TORT, OR OTHERWISE, INCLUDING STATUTORY, CONSUMER PROTECTION, COMMON LAW, INTENTIONAL TORT AND EQUITABLE CLAIMS) BETWEEN YOU AND 365LABS PARTIES arising from or relating to this Agreement, its interpretation or the breach, termination or validity thereof, any relationships which result from this Agreement (including, to the full extent permitted by applicable law, relationships with third-parties who are not signatories to this Agreement), 365Labs’s advertising, or any related service (a “Dispute” ) shall be governed by the laws of the State of LA, without regard to conflicts of law.
11. Jurisdiction and Venue. The parties agree that any Dispute will be brought exclusively in the state or federal courts located in East Baton Rouge Parish “County”, LA. The parties further agree to submit to the personal jurisdiction of the state and federal courts located in East Baton Rouge Parish “County”, LA, and agree to waive any objections to the exercise of jurisdiction over the parties by such courts and to venue in such courts.
12. Bench Trial. The parties agree to waive, to the maximum extent permitted by law, any right to a jury trial with respect to any Dispute.
13. No Class Actions.NEITHER CUSTOMER NOR 365LABS WILL BE ENTITLED TO JOIN OR CONSOLIDATE CLAIMS BY OR AGAINST OTHER CUSTOMERS, OR PURSUE ANY CLAIM AS A REPRESENTATIVE OF A CLASS ACTION OR IN A PRIVATE ATTORNEY GENERAL CAPACITY.
14. Limitation Period. NEITHER PARTY Will be liable for OR ASSERT any claim more than two years after THE claim first arose.
15. Waiver. The failure by us to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit our right to enforce such provision at a later time. All waivers must be in writing to be effective.
16. Attorneys’ Fees. In any Dispute (other than as provided in Section 3B), each party will bear its own attorneys’ fees and costs and expressly waives any statutory right to attorneys’ fees under § 38.001 of the LA Civil Practices and Remedies Code.
17. Notices. Notice to us under this Agreement must be in writing and sent by overnight courier or certified mail to 365Labs Marketing L.P., Attn: Contracts Manager, One Smart Way, Baton Rouge, LA 70810.

Supplemental Terms and Conditions:

Regional Addendum

Additional Terms for Customer and/or End Users in EMEA:

For Customers and/or End Users who receive or are given access to the Solution or Customer Solution in any of the countries in Europe, the Middle East, or Africa, the provisions of this EMEA Addendum shall apply. Customer shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this EMEA Addendum.

1. Data Privacy.

1.1 In this clause 1, the terms “data controller”, “data processor”, “personal data” and “processing” shall be as defined in the European Directive 95/46/EC on the protection of individuals with regard to the processing of personal data and on the free movement of such data (“Directive”) as amended or superseded from time to time.

1.2 To the extent Customer is a data controller for the purpose of any personal data processed under or in connection with this Agreement, Customer shall comply with the provisions and obligations imposed by the Directive.

1.3 As data controller, Customer confirms that it has obtained all necessary authorisations for lawful processing, prior to passing personal data to 365Labs. To the extent 365Labs processes personal data as a data processor for Customer under or in connection with this Agreement, 365Labs shall ensure appropriate protection is in place to safeguard such personal data.

1.4 365Labs shall use its reasonable efforts to assist Customer to comply with its obligations, as data controller, to respond to requests for access to Customer records made by individuals to whom the personal data relates, subject to the payment by Customer of 365Labs’s reasonable professional charges for the time engaged by 365Labs staff in so doing.

1.5 Customer authorises 365Labs to collect, use, store and transfer the personal data Customer provides to 365Labs for the purpose of performing 365Labs’s obligations under this Agreement and for any additional purposes described, pursuant to this Agreement.

1.6 365Labs may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, 365Labs shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.

1.7 365Labs shall not be liable for any claim brought by Customer or a data subject arising from any action or omission by 365Labs to the extent that such action or omission resulted from compliance by 365Labs with Customer’s instructions.

1. Employees.

2.1 In this clause 2, “Claim” means claims, demands, actions, losses (including, without limitation, loss of profit and loss of reputation, loss or damage to property, injury to or death of any person and loss of opportunity to deploy resources elsewhere), expenses, liabilities, judgments, settlements, damages and costs (including all interest, penalties and legal and other professional costs and expenses).

2.2 365Labs personnel shall remain under the sole control, direction and authority of 365Labs. 365Labs will solely be responsible for the human resources it assigns for the provision of the Solution. 365Labs personnel will remain 365Labs’s employees for all purposes and under 365Labs’s administrative and hierarchical control. Customer shall ensure that Customer, its agents, employees or representatives do not in any way interfere in 365Labs’s actions as an employer nor influence this in any way.

2.3 Customer shall indemnify on demand 365Labs from and against all Claims incurred by 365Labs, 365Labs affiliates, its officers, agents and sub-contractors arising out of or in connection with Customer’s or its employees, contractors or agents failure to comply with regulations governing trade union or employee representatives, including but not limited to employee representatives consultation, the termination of the employment rights (by way of redundancy or otherwise) or deemed transfer of any employment rights pursuant to applicable laws and regulations of any Customer employees or Customer’s previous supplier providing services similar to the Solutions resulting from the entering into or termination of any Solutions or arising out of or in connection with this Agreement.

2.4 If a member of 365Labs personnel (whether employed or engaged by 365Labs or its contractors or agents) brings a Claim against 365Labs or its subcontractors or suppliers as a result of any act, omission or default of Customer or it employees, contractors or agents (including any Claim arising from a request by Customer that the individual be removed from providing any part of the Solutions), Customer shall cooperate with 365Labs in defending any such proceedings and shall indemnify on demand 365Labs, its subcontractors and suppliers from and against all Claims incurred by 365Labs, 365Labs affiliates, its officers, agents and sub-contractors arising out of or in connection with any award of compensation or other payment made by a court or tribunal or any monies paid in respect of any settlement or compromise agreement and all legal costs and any disbursements incurred by 365Labs in dealing with any such Claim.

Additional Terms for Customer and/or End Users in Canada:

This Canadian Addendum to the Agreement applies to Customer, where Customer is U.S.-based but has End Users who receive or are given access to a Solution or Customer Solution in Canada. For greater certainty this Canadian Addendum is not intended to facilitate the sale of Solutions from 365Labs directly to a Canadian company.

1. Data Privacy.

1.1 You acknowledge that the Solution is provided from facilities located outside of Canada and any data, or information you provide through the Solution (including personal information) will be transmitted and stored outside of Canada.

1.2 You will be responsible to ensure that you have obtained all rights, permissions, and consents or have provided disclosures necessary to use and transfer such data and information outside of Canada in conjunction with 365Labs’s performance of the Solution.

1.3 You will also be responsible to ensure that you are permitted to disclose or transfer data and information outside of Canada under any laws that may be applicable to your business, including the data and information collected and used by or in the course of conducting your business.

Additional Terms for Customer and/or End Users in LatAm:

For Customers and/or End Users who receive or are given access to the Solution or Customer Solution in any of the countries in Central and South America (“LatAm”), the provisions of this LatAm Addendum shall apply. Customer shall be responsible for ensuring compliance by End Users with the terms of this Agreement including this LatAm Addendum.

1. Data Privacy.

1.1 You expressly authorize 365Labs to use, reproduce, modify, perform, display and distribute your and End User’s data as is reasonable or necessary for 365Labs to perform or provide the Solution.

1.2 You acknowledge and expressly consent that the Solution is provided from facilities located outside of your country and LatAm and any data or information you provide through the Solution (including personal information protected by Data Privacy Laws) will be transmitted and stored outside of your country and LatAm. You agree that the stored information may be subject to the applicable laws and jurisdiction of the place of such facilities.

1.3 You will be responsible to ensure that you have obtained all rights, permissions, and consents or have provided disclosures necessary to use and transfer such data and information outside of LatAm in conjunction with 365Labs’s performance of the Solution. Once such data or information has been transferred to 365Labs you will have been deemed to have obtained the necessary consent and authorisations.

1.4 You will also be responsible to ensure that you are permitted to disclose or transfer data and information outside of LatAm under any laws that may be applicable to your business, including the data and information collected and used by or in the course of conducting your business.

1.5 You acknowledge and expressly consent that 365Labs may, in the normal course of business, make worldwide transfers of personal data on its corporate systems, to other entities, agents or subcontractors in the same group of companies, or to other relevant business partners who may have incidental access to personal data. When making such transfers, 365Labs shall ensure appropriate protection is in place to safeguard personal data transferred under or in connection with this Agreement.

1.6 You will be solely responsible for all access of information requests made by individual and legal entities permitted by local legislation. 365Labs shall use its reasonable efforts to assist Customer to comply with its obligations, subject to the payment by Customer of 365Labs’s reasonable professional charges for the time engaged by 365Labs staff in so doing and any indemnification as applicable.

Cloud Solutions Agreement Acceptable Use Policy

This Cloud Solutions Agreement Acceptable Use Policy (the “AUP”) sets forth certain limitations and restrictions required in connection with your use and your End Users’ use of (i) the Solutions, and (ii) any online portal, console, dashboard or similar interface used in accessing the Solutions (the “Portal”). We may revise this AUP from time to time to add or modify restrictions on your use or your End Users’ use of the Solutions or the Portal. If you or your End Users violate this AUP, we may suspend or terminate your use or your End Users’ use of the Solutions.

Terms used in this AUP that are capitalized and not otherwise defined have the meanings set forth in the 365Labs Cloud Solutions Agreement.

You are prohibited from (1) attempting to use or gain unauthorized access to our or to any third-party’s networks or equipment; (2) permitting other individuals or entities to copy the Solutions; (3) providing unauthorized access to or use of Activation Instructions; (4) attempting to probe, scan or test the vulnerability of the Solutions or of a system, account or network of 365Labs or any of our customers or suppliers; (5) interfering or attempting to interfere with service to any user, host or network; (6) engaging in fraudulent, offensive or illegal activity of any nature; (7) uploading any content, or engaging in any activity, that is pornographic, obscene, harassing, abusive, slanderous or defamatory or that encourages, promotes or expresses racism, hatred, bigotry or violence; (8) engaging in any activity that infringes the intellectual property rights or privacy rights of any individual or third-party; (9) transmitting unsolicited bulk or commercial messages; (10) intentionally distributing worms, Trojan horses, viruses, corrupted files or any similar items; (11) restricting, inhibiting or otherwise interfering with the ability of any other person, regardless of intent, purpose or knowledge, to use or enjoy the Solutions (except for tools with safety and security functions); or (12) restricting, inhibiting, interfering with or otherwise disrupting or causing a performance degradation to any 365Labs (or 365Labs supplier) facilities used to deliver the Solutions.

We may investigate suspected violations of this AUP. We may report suspected violations of this AUP to applicable law-enforcement authorities or third-parties and may cooperate with any investigation of illegal activities associated with your use or your End Users’ use of the Solutions, the Portal, the system or network, or any violation of this AUP.

If you purchased hardware from 365Labs or a 365Labs reseller, your order acknowledgement, invoice or receipt will include the name of the hardware product(s) that you purchased. To locate the applicable limited hardware warranty scroll through the warranties below.

365Labs Limited Hardware Warranty

Limited hardware warranties

365Labs-branded hardware products purchased in the U.S. or Canada may come with a 90-day, 1-year, 2-year, 3-year, 4-year, 5-year or other limited hardware warranty. 365Labs may offer different delivery methods for warranty service, including but not limited to parts and product dispatches, mail-in service and onsite/in-home service. Renewals and extensions of your limited hardware warranty may also be available after you purchase your product(s). To determine the warranty that came with your hardware product(s), or the warranty renewal or extension that you purchased, see your packing slip, invoice, receipt or other sales documentation. Some components of the hardware you purchased may have a shorter warranty than that listed on your packing slip, invoice, receipt or other sales documentation. Additional details related to warranty duration are listed below.

What is covered by this limited hardware warranty?
What is not covered by this limited hardware warranty?
How long does this limited hardware warranty last?
Important Notice Relating to Third Party Product
What do I do if I need warranty service?
What will 365Labs do?
What if I purchased a service contract?
May I transfer the limited hardware warranty?
365Labs Printer Consumables Limited Warranties
Limited Lifetime Warranty for 365Labs-branded tape media

What is covered by this limited hardware warranty?

This limited hardware warranty covers defects in materials and workmanship in your 365Labs-branded hardware products, including 365Labs-branded peripheral products.

What is not covered by this limited hardware warranty?

This limited hardware warranty does not cover:

• Software, including without limitation, the operating system and software added to the 365Labs-branded hardware products through our factory-integration system, third-party software or the reloading of software
• Non 365Labs-branded products and accessories
• Problems that result, directly or indirectly, from:
  • External causes such as accident, abuse, misuse or problems with electrical power.
  • Servicing not authorized by 365Labs.
  • Usage that is not in accordance with product instructions.
  • Failure to follow the product instructions or failure to perform preventive maintenance.
  • Using accessories, parts or components not supplied by 365Labs.
• Commercial hardware products that use, or in which have been installed, products or components that have not been provided by 365Labs.
• Products with missing or altered service tags or serial numbers
• Products for which 365Labs has not received payment
• Normal wear and tear

FOR COMMERCIAL CUSTOMERS (INCLUDING SMALL, MEDIUM AND LARGE BUSINESS AND GOVERNMENT AND PUBLIC SECTOR CUSTOMERS) AND RESELLERS. This paragraph applies if you purchase 365Labs products for resale or for commercial or professional purposes. 365LABS’S RESPONSIBILITY FOR DEFECTS IN MATERIALS OR WORKMANSHIP IS LIMITED TO REPAIR OR REPLACEMENT OF THE PRODUCT AS SET FORTH IN THIS WARRANTY STATEMENT. EXCEPT FOR THE LIMITED WARRANTY EXPRESSLY STATED ABOVE FOR 365LABS-BRANDED PRODUCTS, 365LABS PROVIDES NO WARRANTIES OR CONDITIONS, EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO ANY WARRANTY OR CONDITION (1) OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NONINFRINGEMENT; (2) RELATING TO ANY THIRD-PARTY PRODUCT OR SOFTWARE; OR (3) REGARDING THE RESULTS TO BE OBTAINED FROM THE PRODUCT OR SOFTWARE. 365LABS EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS NOT STATED IN THIS LIMITED WARRANTY.  THIS LIMITED HARDWARE WARRANTY MAY BE VOIDED BY 365LABS, AT 365LABS’S SOLE DISCRETION, IF THIRD PARTY PRODUCTS THAT WERE NOT PROVIDED BY 365LABS ARE INSTALLED ON YOUR 365LABS SYSTEM.

FOR ALL CUSTOMERS. WE DO NOT ACCEPT LIABILITY BEYOND THE REMEDIES PROVIDED FOR IN THIS LIMITED HARDWARE WARRANTY, AND WE DO NOT ACCEPT LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, FOR THIRD-PARTY CLAIMS AGAINST YOU FOR DAMAGES, FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR LOST OR DAMAGED DATA OR SOFTWARE. 365LABS DOES NOT WARRANT THAT THE OPERATION OF ANY 365LABS PRODUCT WILL BE UNINTERRUPTED OR ERROR FREE. OUR LIABILITY WILL BE NO MORE THAN THE AMOUNT YOU PAID FOR THE SPECIFIC PRODUCT THAT IS THE SUBJECT OF A CLAIM. THIS IS THE MAXIMUM AMOUNT FOR WHICH WE ARE RESPONSIBLE.

How long does this limited hardware warranty last?

This limited hardware warranty lasts for the time period indicated on your packing slip, invoice or receipt except for the following 365Labs-branded hardware:

• All variants of ioDrive® NAND Flash devices carry the length of the limited hardware warranty coverage for the 365Labs system with which the ioDrive NAND Flash device is shipped. ioDrive NAND Flash devices are not eligible for purchase of extended warranty coverage beyond a total of 5 years of coverage from the original shipment date. Additionally, ioDrive NAND Flash devices use a silicon technology that has a maximum number of physical bytes that can be written to the device (the Rated Life). The applicable limited hardware warranty covers failures due to defects in workmanship and/or materials, but does not cover problems related to the device reaching its maximum Rated Life. ioDrive is a registered trademark of Fusion-io.
• As part of standard portable configuration, batteries carry a base 1-year limited hardware warranty regardless of the length of the system warranty. In addition, for some products, a customer has the option of purchasing a battery that comes with a 3-year limited hardware warranty.
• The warranty for a print head that is included as original equipment in the 365Labs mobile printer is for parts only and is effective for a period of 1-year after the date of purchase of the printer or 1000 prints of printer usage, whichever occurs first.
• Your series 5, 6 or 7 PowerEdge™ RAID Controller (PERC) battery may provide up to 72 hours of controller cache memory backup power when new. Under the 1-year limited hardware warranty, we warrant that the battery will provide at least 24 hours of backup coverage during the 1-year limited hardware warranty period. Service offerings, such as 365Labs ProSupport™, 365Labs ProSupport Plus and 365Labs ProSupport Flex services, may be available to provide longer service periods for an additional fee.
• Your Series 8/9 PERC controller battery comes with a 3-year limited hardware warranty, which cannot be extended beyond 3 years.  Service offerings, such as 365Labs ProSupport™, 365Labs ProSupport Plus and 365Labs ProSupport Flex services, may be available to provide longer service periods for an additional fee. 
• Projector lamps carry a 1 year limited hardware warranty.
• 365Labs-certified and 365Labs-branded memory purchased separately from a 365Labs system (365Labs-certified memory) carries a lifetime limited hardware warranty.
• The limited hardware warranty for monitors purchased independent of a system lasts for the time period indicated on your packing slip, invoice, receipt or other sales documentation. Monitors purchased with a system are covered by the system limited hardware warranty.
• The limited hardware warranty for a 365Labs external hard disk drive purchased simultaneously with a laptop, desktop, tablet or thin client PC lasts for the longer of (a) 2 years; or (b) the duration of the system’s limited hardware warranty.
• Earphones and remote in-line controls carry a 1-year limited hardware warranty.
• Other add-on hardware carries longer hardware warranty of either a 1-year limited hardware warranty for new parts and a 90-day limited hardware warranty for reconditioned parts or, for both new and reconditioned parts, the remainder of the warranty for the 365Labs product on which such parts are installed.
• Serial ATA (SATA) hard drives in PowerEdge and PowerVault™ systems carry a 1-year limited hardware warranty, independent of system warranty. Service offerings, such as 365Labs ProSupport™, 365Labs ProSupport Plus and 365Labs ProSupport Flex services may be available to provide longer service periods for the SATA hard drive for an additional fee.
• Select PowerConnect™ products: the PowerConnect 2800 series, the PowerConnect 3500 series, the PowerConnect 5500 series, the PowerConnect 6200 series, the PowerConnect 7000 series, the PowerConnect 8000 series and the PowerConnect 8100 series and select 365Labs Networking products: 365Labs Networking X1000and X4000 series; the N1000, N2000, N3000 and N4000 series and the S3100 series are covered by the lifetime limited hardware warranty. These products carry a lifetime limited hardware warranty with Basic Hardware Service (repair or replacement) for as long as you own the product. Repair or replacement support for any 365Labs Networking product with limited lifetime warranty does not include configuration or configuration assistance, or other advanced service and support provided by 365Labs ProSupport Services. The warranty does not apply to products purchased before first announcement in Spring 2011. Dates vary by region. Contact customer service to verify if your product qualifies. See com/LifetimeWarranty for more details.
• Select PowerConnect products carry an Extended Life Limited Hardware Warranty with Basic Hardware Service, which extends until 5 years after end of product model sales, subject to the specific clarifications and limitations listed below. The Extended Life Limited Hardware Warranty does not include configuration or other advanced service provided by 365Labs ProSupport™. The Extended Life Limited Hardware Warranty is not transferrable.

Clarifications and limitations pertaining to products with Extended Life Limited Hardware Warranty
• B-Series FCX/FCXs — Internal power supply and fans are covered; however, warranty excludes removable optics and LEDs.
• J-Series EX4200 — Warranty does not include optics and limits fan and power supply to 5 years from date of purchase.
• W-Series Access Points: W-AP92/93/93H, W-IAP92/93, W-AP104/105, W-IAP105, W-AP124/125, W-AP134/135, W-IAP134/135 — Warranty limits any power supply, antennae or accessories to 1 year from date of purchase.

• Enterprise SATA value/mix use solid-state drives (SSDs), enterprise SATA read intensive SSDs and slim SATA SSDs are not eligible for purchase of extended warranty coverage beyond 3 years, unless purchased with a separate service offering, such as 365Labs ProSupport™, 365Labs ProSupport Plus or 365Labs ProSupport Flex services, which may be available to provide longer service periods for an additional fee.
• 365Labs power distribution units (PDUs) and keyboard/monitor/mouse consoles (KMMs) purchased independent of a system carry a 1-year limited hardware warranty. 365Labs PDUs and KMMs purchased with a system are covered by the greater of 3 years or the term of the system limited hardware warranty.
• All variants of PowerEdge Express Flash PCI Express (PCIe) SSD devices carry the length of the limited hardware warranty coverage for the 365Labs system with which the PowerEdge Express Flash PCIe SSD device is shipped. PowerEdge Express Flash PCIe SSD devices are not eligible for purchase of extended warranty coverage beyond a total of 5 years of coverage from the original shipment date unless purchased with a separate service offering, such as 365Labs ProSupport™, 365Labs ProSupport Plus or 365Labs ProSupport Flex services. Additionally, PowerEdge Express Flash PCIe SSD devices use a silicon technology that has a maximum number of physical bytes that can be written to the device (the Device Life). The applicable limited hardware warranty covers failures due to defects in workmanship and/or materials, but does not cover problems related to the device reaching its maximum Device Life.
• Except for SAS solid-state drives (SSDs) used in PS Series and SC Series products, enterprise SATA, SAS and NVMe SSDs are not eligible for purchase of extended warranty coverage beyond 3 years from the original shipment date, unless purchased with a separate service offering, such as 365Labs ProSupport™, 365Labs ProSupport Plus or 365Labs ProSupport Flex services, which may be available to provide longer service periods for an additional fee. All such devices have a maximum number of physical bytes that can be written to the device (the Device Life). The applicable limited hardware warranty covers failures due to defects in workmanship and/or materials, but does not cover problems related to the device reaching its maximum Device Life.

The limited hardware warranty on all 365Labs-branded products purchased directly from 365Labs begins on the date of the packing slip, invoice, receipt or other sales documentation. For products purchased from third-party retailers or resellers, the limited hardware warranty begins on the date of your original sales receipt. The warranty period is not extended if we repair or replace a warranted product or any parts. 365Labs may change the availability of limited hardware warranties, at its discretion, but any changes will not be retroactive.

Important Notice Relating to Third Party Product

365Labs cannot guarantee the authenticity of the products, limited warranties, service or support, or the accuracy of the listings of products you purchase from a third party.  In some cases, such as with battery packs and power adapters, use of third party product may pose an increased risk of reliability or safety issues, including increased risk of fire or explosion.  This limited hardware warranty does not cover issues caused by installation or use in a 365Labs system of any third party product that was not provided by 365Labs.  For Commercial customers, this limited hardware warranty may be voided by 365Labs, at 365Labs’s sole discretion, if you install or use in a 365Labs system any third party product that was not provided by 365Labs.

What do I do if I need warranty service?

Before contacting 365Labs, please try one or more of the following:

1. Ensure that you have installed any updates or resolved any issues identified by the monitoring, diagnostic, and proactive support tools such as 365Labs SupportAssist that are installed on your product. 365Labs SupportAssist may also be available for download onto your product if it is not already installed. Visit 365Labs.com/help for download files and resources;
2. Access 365Labs.com/support for troubleshooting advice and directions on running hardware diagnostics; and
3. Consult your Owner’s Manual.

If you need additional assistance, then, before the warranty expires, please use one of the following support options to contact 365Labs or our authorized representatives: 

1. Online: Online, chat and other forms of remote support may be available. Contact information is available at 365Labs.com/support
2. Telephone support requests: Contact information is included in the table below.  Long distance telephone carrier charges may apply. 

Please also have your 365Labs Service Tag or order number available when you contact 365Labs.

If you purchased through a retailer (not directly from 365Labs), you may be required to provide 365Labs with your original sales receipt from your purchase to receive any warranty service from 365Labs.

If you purchased through Best Buy, you must have all original sales receipts from your purchase to receive any warranty service at a Best Buy store. For Canada, if you purchased through Future Shop, you must have all original sales receipts from your purchase to receive any warranty service at a Future Shop store.

What will 365Labs do?
 

Upon contacting 365Labs, you will be required to engage in a remote diagnosis session to help determine the cause of your issue. Remote diagnosis may involve customer access to the inside of the product and multiple or extended sessions. If 365Labs determines that your issue is the result of a defect in materials or workmanship but the issue is not able to be resolved remotely, 365Labs, at its sole discretion, may dispatch a replacement part to you, arrange for you to send your product or defective part back to 365Labs’s repair depot or replace the part or product with a comparable part or product that may be new or refurbished. If the 365Labs Limited Hardware Warranty for your product includes onsite/in-home warranty service, then 365Labs may also elect to dispatch a service technician to your location to perform the repair or replacement (see Important Information about Onsite/In-Home Warranty Service After Remote Diagnosis below).

If your limited hardware warranty has expired or if we determine that the problem is not covered under this limited hardware warranty, we may be able to offer you service alternatives on a fee basis.

We use new and refurbished parts made by various manufacturers in performing warranty repairs and in building replacement parts and products. Refurbished parts and products are parts or products that have been returned to 365Labs, some of which were never used by a customer. All parts and products are inspected and tested for quality. Replacement parts and products are covered for the remaining period of the limited hardware warranty for the product you purchased. 365Labs owns all parts removed from repaired products and, in most instances, you will be required to return defective parts to 365Labs.

365Labs may use authorized representatives to provide any of the technical support or repair services under this limited hardware warranty.

Important information about returning products to 365Labs for repair or replacement:

For Mail-in Service: Customer supplies box, pays shipping: Upon a determination by 365Labs that your product should be returned to 365Labs for repair or replacement, we will issue a Return Material Authorization (RMA) number that you must include with your return. You must return the product to us in its original or equivalent packaging, prepay shipping charges and insure the shipment or accept the risk if the product is lost or damaged in shipment, which could void warranty coverage as customer-induced damage. We will return the repaired or replacement product to you. We will pay to ship the repaired or replaced product to you if you use an address in the United States (excluding Puerto Rico and U.S. possessions and territories) or in Canada (in respect of systems registered in Canada). Otherwise, we will ship the product to you freight collect.

For Mail-in Service: Customer supplies box, 365Labs pays shipping: Upon a determination by 365Labs that your product should be returned to 365Labs for repair or replacement, shipping instructions will be provided to you. You must package the product in its original or equivalent packaging and call the carrier designated on your shipping instructions to arrange a pickup time or, at your convenience, you may take the adequately packaged product to a designated carrier pick up location. As long as you follow our shipping instructions, we will pay standard shipping charges for shipping the product in for repair and for shipping it back to you if you use an address in the United States (excluding Puerto Rico and U.S. possessions and territories) or in Canada (in respect of systems registered in Canada). Otherwise, we will ship the product to you freight collect.

For Mail in Service: 365Labs supplies box and pays shipping: Upon a determination by 365Labs that your product should be returned to 365Labs for repair or replacement, packaging, shipping instructions and a prepaid shipping waybill will be sent to you. Upon receipt of the shipping supplies, you must package the product in the material required and call the carrier designated on your shipping instructions to arrange a pickup time. As long as you follow our shipping instructions, we will pay standard shipping charges for shipping the product in for repair and for shipping it back to you if you use an address in the United States (excluding Puerto Rico and U.S. possessions and territories) or in Canada (in respect of systems registered in Canada).  Otherwise, we will ship the product to you freight collect.

When you contact us regarding certain products, we may offer to ship you a replacement product prior to receiving your original product back. In such instance, we may require a valid credit card number at the time you request a replacement product. We will not charge or invoice you for the replacement product as long as you return the original product to us within 10 days of your receipt of the replacement product and we confirm that your product issue is covered under this limited hardware warranty. If we do not receive your original product within 10 days, we will charge your credit card or invoice you for the then-current standard price for the product. If upon receipt of your original product, we determine that your product issue is not covered under this limited hardware warranty, you will be given the opportunity to return the replacement unit, at your sole expense, within 10 days from the date we contact you regarding the lack of coverage for your issue or we will charge to your credit card or invoice you the then-current standard price for the product. In addition, if you fail to pay 365Labs the amounts, 365Labs may suspend your limited hardware warranty support until the applicable amount is paid. A suspension of your limited hardware warranty for failure to properly return a product or to pay an amount charged for such failure to return a product will not toll the term of your limited hardware warranty and the limited hardware warranty will still expire in accordance with its original term.

NOTE: Before you ship the product(s) to us, make sure to back up the data on the hard drive(s) and any other storage device(s) in the product(s). You are responsible for removing any confidential, proprietary or personal information and removable media such as storage cards or devices, DVDs/CDs or PC Cards regardless of whether a technician is also providing in-home or onsite assistance. We are not responsible for any of your confidential, proprietary or personal information; lost or corrupted data; data or voice charges incurred as a result of failing to remove all SIM cards; or damaged or lost removable media. Please, only include the product components requested by 365Labs.

Important information about part dispatches by 365Labs:

For some issues, 365Labs may dispatch a new or refurbished part for you to replace a defective part, if we agree that the defective part needs to be replaced. You must return the defective part to 365Labs. When you contact us, we may offer to ship you a replacement part prior to receiving your original part back. In such instances, we may require a valid credit card number at the time you request a replacement part. We will not charge or invoice you for the replacement part as long as you return the original part to us within 10 days of your receipt of the replacement part. Failure to timely return the defective part to 365Labs in accordance with the written instructions provided with the replacement part may result in the suspension of your limited hardware warranty support or a charge to your credit card or invoice in the amount of the then-current standard 365Labs price for that part. A suspension of your limited hardware warranty for failure to properly return a part will not toll the term of your limited hardware warranty and the limited hardware warranty will still expire in accordance with its original term.

We will pay to ship the part to you if you use an address in the United States (excluding Puerto Rico and U.S. possessions and territories) or in Canada (in respect of systems registered in Canada). Otherwise, we will ship the part freight collect. We will also include a prepaid shipping container with each replacement part for your use in returning the replaced part to us.

NOTE: Before you replace parts, make sure to back up the data on the hard drive(s) and any other storage device(s) in the product(s). You are responsible for removing any confidential, proprietary or personal information and removable media such as storage cards or devices, DVDs/CDs or PC Cards regardless of whether a technician is also providing in-home or onsite assistance. We are not responsible for any of your confidential, proprietary or personal information; lost or corrupted data; data or voice charges incurred as a result of failing to remove all SIM cards; or damaged or lost removable media. When returning parts to 365Labs, please only include the product components requested by 365Labs.

Important information about Onsite/In-Home Warranty Service After Remote Diagnosis:

If the 365Labs Limited Hardware Warranty for your product includes onsite/in-home warranty service, then if 365Labs determines that your issue is covered under this limited hardware warranty and your problem cannot be resolved remotely or, if applicable, by dispatching a part or replacement product to you, then 365Labs may dispatch a service technician to your location within the United States (including Puerto Rico, but excluding the other U.S. possessions and territories) or in Canada (in respect of systems registered in Canada). Please tell the technician the full address of your system’s location. Both the performance of service and service response times depend upon the time of day your request is received by 365Labs, the service alternative you purchased, parts availability, geographical restrictions, weather conditions and the terms of this limited hardware warranty. An adult must be present at all times during the service technician’s visit. You must grant the service technician full access to the system and (at no cost to 365Labs) have working space, electricity and a local telephone line. If these requirements are lacking, 365Labs is not obligated to provide service. In addition, 365Labs is not obligated to provide service if you fail to provide an environment that is conducive to computer repair, including for example, if you insist on service to be provided at varying locations, if you fail to properly restrain a pet, if you threaten our technician either verbally or physically, or if your location or the general area where the system is located is dangerous, infested with insects, rodents, pests, biohazards, human or animal excrement and/or chemicals as reasonably determined to be unsafe by our technician. If you or your authorized representative is not at the location when the service technician arrives, the service technician will not be able to service your system and you may be charged an additional amount for a follow-up service call.

If 365Labs determines that your system needs a replacement part, you authorize the on-site technician to act as your service agent to handle the delivery and return of the warranty parts necessary to render on-site repairs. You may incur a charge if you fail to allow the on-site technician to return nonworking/unused units/warranty parts to 365Labs.

What if I purchased a service contract?

If your service contract is with 365Labs, service will be provided to you under the terms of the service agreement. Please refer to that contract for details on how to obtain service.

If you purchased through us, a service contract with a third-party service provider, please refer to that contract for details on how to obtain service.

See 365Labs.com/servicecontracts for more details.

365Labs Printer Consumables Limited Warranties

The following sections describe the limited warranty for 365Labs-branded printer consumables (ink cartridges, toner cartridges, photo print packs and photo paper) for the U.S., Canada and Latin America. Refer to the appropriate limited warranty accordingly.

Consumables Limited Warranty (U.S. Only)

365Labs ink

365Labs warrants to the original purchaser of genuine 365Labs-branded ink cartridges that they will be free from defects in material and workmanship for two years beginning on the date of invoice.

Toner

365Labs warrants to the original purchaser of genuine 365Labs-branded toner cartridges that they will be free from defects in material and workmanship for the life of the cartridge under normal use and storage conditions.
Lifetime toner warranty applies to the original toner only and does not apply to refilled or remanufactured toner cartridges.

365Labs paper

365Labs warrants to the original purchaser of genuine 365Labs Premium Photo Paper and photo print packs that they will be free from defects in material and workmanship for 90 days beginning on the date of invoice.

If any of these products prove defective in either material or workmanship, they will be replaced without charge during the limited warranty period if returned to 365Labs. You must first call our toll-free number to get your return authorization. In the U.S., call 1-800-822-8965; in Canada, call 1-800-387-5757. If we are not able to replace the product because it has been discontinued or is not available, we will either replace it with a comparable product or reimburse you for the cartridge purchase cost, at 365Labs’s sole option. This limited warranty does not apply to product damage resulting from misuse, abuse, accident, cartridge refilling or remanufacturing by customer, neglect, mishandling or incorrect environments.

Limited Lifetime Warranty for 365Labs-branded tape media

365Labs warrants to you, the end-user customer, that this product will be free from defects in material and workmanship for the lifetime of the product, if it is properly used and maintained. If this product proves defective in either material or workmanship, 365Labs, at its option, will (a) repair the product, (b) replace the product or (c) refund the purchase price of the product, provided that the product has been returned to 365Labs with proof of purchase, such as a purchase order, invoice or sales receipt. You must first contact your local 365Labs support representative for your authorization option. To contact your local support representative, please visit 365Labs.com, choose your country using the drop down menu located at the top of the page and then click on services and support. This limited lifetime warranty does not apply to failure of the product resulting from misuse, abuse, accident, neglect or mishandling, improperly adjusted or maintained drives, incorrect environments or wear from ordinary use.

THIS LIMITED LIFETIME WARRANTY GIVES YOU SPECIFIC LEGAL RIGHTS AND YOU MAY ALSO HAVE OTHER RIGHTS, WHICH VARY FROM STATE TO STATE, PROVINCE TO PROVINCE, JURISDICTION TO JURISDICTION OR COUNTRY TO COUNTRY. 365LABS’S RESPONSIBILITY FOR MALFUNCTIONS AND DEFECTS IN HARDWARE IS LIMITED TO REPLACEMENT AS SET FORTH IN THIS LIMITED LIFETIME WARRANTY STATEMENT. EXCEPT FOR THE EXPRESS WARRANTIES CONTAINED IN THIS WARRANTY STATEMENT, 365LABS DISCLAIMS ALL OTHER WARRANTIES AND CONDITIONS, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, FOR THE PRODUCT, INCLUDING BUT NOT LIMITED TO ANY IMPLIED WARRANTIES AND CONDITIONS OF MERCHANTABILITY, MERCHANTABLE QUALITY, FITNESS FOR A PARTICULAR PURPOSE, PERFORMANCE, SUITABILITY OR NON-INFRINGEMENT. ANY IMPLIED WARRANTIES AND CONDITIONS THAT MAY BE IMPOSED BY AND THAT ARE NOT PERMITTED TO BE DISCLAIMED BY LAW ARE LIMITED IN DURATION TO THE LIMITED WARRANTY PERIOD. SOME STATES, PROVINCES, JURISDICTIONS OR COUNTRIES DO NOT ALLOW THE EXCLUSION OF CERTAIN IMPLIED WARRANTIES OR CONDITIONS, OR LIMITATIONS ON HOW LONG AN IMPLIED WARRANTY OR CONDITION LASTS, SO THIS LIMITATION MAY NOT APPLY TO YOU. THIS LIMITED LIFETIME WARRANTY COVERAGE TERMINATES IF YOU SELL OR OTHERWISE TRANSFER THIS PRODUCT TO ANOTHER PARTY.

365LABS DOES NOT ACCEPT LIABILITY BEYOND THE REMEDIES PROVIDED FOR IN THIS LIMITED LIFETIME WARRANTY AND WE DO NOT ACCEPT LIABILITY FOR SPECIAL, INDIRECT, CONSEQUENTIAL OR INCIDENTAL DAMAGES, FOR THIRD-PARTY CLAIMS AGAINST YOU FOR DAMAGES, FOR PRODUCTS NOT BEING AVAILABLE FOR USE, OR FOR LOST DATA OR LOST SOFTWARE. 365LABS’S LIABILITY WILL BE NO MORE THAN THE AMOUNT YOU PAID FOR THE PRODUCT THAT IS THE SUBJECT OF A CLAIM. THIS IS THE MAXIMUM AMOUNT FOR WHICH 365LABS IS RESPONSIBLE.

SOME STATES, PROVINCES, JURISDICTIONS OR COUNTRIES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU.

Commercial Terms of Sale

These Commercial Terms of Sale (“CTS”) apply to orders for hardware, software, and services by direct commercial and public sector purchasers and to commercial end-users who purchase through a reseller (“Customer”), unless Customer and Suppliers (defined below) have entered into a separate written agreement that applies to Customer’s orders for specific products or services, in which case, the separate written agreement governs Customer’s purchase and use of such specific products or services. 

The term “Supplier(s)” means, as applicable:

1 Smart Way,
Baton Rouge, Louisiana 70810
and
365Labs Marketing L.P. or 365Labs Federal Systems L.P. (for purchases through the U.S. Federal Sales Team) (“365Labs”)
Legal Notices:
365Labs_Legal_Notices@365Labs.com  

1. Subject Matter and Parts of CTS.

1.1 Scope. This CTS governs Customer’s procurement and Supplier’s provisioning of Products, Services and Third Party Products (if applicable) (collectively “Offerings”), for Customer’s own internal use.

1.2 Products and Services. “Products” are either: (i) Supplier-branded IT hardware products (“Equipment”) or (ii) Supplier-branded generally available software, whether microcode, firmware, operating systems or applications (“Software”). “Services” are: (a) Supplier’s standard service offerings for maintenance and support of Products (“Support Services”) and (b) consulting, deployment, implementation and any other services that are not Support Services (“Professional Services”). “Third Party Products” means hardware, software, products, or services that are not “365Labs” or “365Labs ” branded. Products exclude Services and Third Party Products.

1.3 Framework. This CTS consists of the main body with the terms and conditions applicable to all Offerings that are in scope, as may be supplemented by additional schedules, containing terms applicable to all or only specific Offerings and shall form an integral part of this CTS (“Schedule(s)”). This CTS does not establish a commitment of Customer to procure, nor an obligation of Supplier or Affiliate to supply, any Offerings unless the parties have agreed on an Order (as defined below).

1.4 Affiliates. Transactions under this CTS may also involve 365Labs Inc. or 365Labs Inc.’s direct or indirect subsidiaries (“Affiliates”).

2. Quoting and Ordering.

2.1 Process. Customer or its Affiliates based in the same country as Customer may request a quote from Supplier or its Affiliate (depending on the Offerings purchased), either in the form of a written quotation or online via www.365Labs.com or any other online process (“Quote”). Quoted prices are effective until the expiration date of the Quote but may change due to shortages in materials or resources, increase in the cost of manufacturing, or other factors. Customer may order the Offerings quoted by: (i) issuing a Customer purchase order that references such Quote and, if applicable, contract code; (ii) executing Supplier or Affiliate order forms; (iii) ordering online through either www.365Labs.com or other online process; or (iv) ordering through an authorized reseller. Orders are subject to credit approval and are subject to acceptance by Supplier; unless Supplier has already otherwise accepted an order, shipment of the Offerings shall be deemed Supplier’s acceptance of the order. An accepted order is hereinafter referred to as an “Order.” Supplier may split an Order into separate transactions, each of which will form an Order. Orders may contain charges for shipping and handling.  Orders are subject to availability and are cancellable only by Supplier except as expressly permitted in a Schedule. Supplier is not responsible for pricing, typographical or other errors in any offer and may cancel Orders affected by such errors. Customer may change or cancel an Order only as expressly permitted in a Quote or Schedule.

2.2 Orders Submitted Through Reseller. If Customer’s purchase is made through a reseller, then clauses 2.1, 3, and 6 do not apply and all credit, invoicing, payment, returns, ordering, pricing and cancellation terms for the purchase will be as agreed between Customer and reseller.

2.3 Incorporation by Reference. Each Order which covers the procurement and sale of any Offering that is within the scope of a Schedule listing certain specific Offerings and signed under this CTS shall be deemed to incorporate by reference the terms of this CTS.

2.4 Product and Service-Specific Terms. Scope and details of Services and Product-specific terms are specified in the applicable standard service description that is attached to or referred in a Schedule or Quote, or is made available through the then-current Supplier website for product- or service-specific terms, currently located at www.365Labs.com/offeringspecificterms. Such standard descriptions are from time to time referred to as “Service Description(s)”, “Product Notices” or “Service Briefs.” The version of the applicable document that is effective as of the date of the applicable Quote, shall be deemed incorporated into the Order. Scope and details of customized Professional Services not covered by such a standard description shall be documented in a mutually agreed Statement of Work (“SOW”).

2.5 Order of Precedence. This CTS including the documents referenced herein shall apply to the exclusion of all other general terms and conditions incorporated in or referred to in any documentation submitted by Customer to Supplier.
Subject to the foregoing, in case of any conflict or inconsistency the following order of precedence shall apply:

A. The terms of the Order, where either: (i) this CTS expressly provides for the parties to optionally deviate from the relevant provision of this CTS; or (ii) where the Order states that the parties wish to deviate from the terms of this CTS for the purpose of the individual transaction and the parties expressly accept the deviation;

B. The terms of any Schedule to this CTS; and

C. The main body of this CTS.

2.6 Revision of Offerings. Supplier may revise its Offerings, including after Customer places an Order but prior to Supplier’s shipment or performance. As a result, Offerings Customer receives may differ from those ordered, as long as they still substantially meet or exceed the specifications as per the documentation of the originally ordered Offerings.

3. Product Delivery.

3.1 Shipment. Unless otherwise agreed, Supplier shall arrange for shipment of the ordered Products to the ship-to address indicated in the Order, through a common carrier designated by Supplier. Delivery dates are indicative. Software may be provided by delivery of physical media or through electronic means. Customer shall notify Supplier within 21 days of the invoice date if Customer believes any Product included in its Order is missing, wrong, or damaged, and shall ensure that the intended installation site meets the specifications as per the product documentation.

3.2 Transfer of Risk and Title; Costs. Risk of loss for Equipment and for physical media containing licensed Software transfers to Customer upon Delivery. Title to sold Equipment passes to Customer upon Delivery. “Delivery” for Equipment occurs when Supplier provides the Equipment to the carrier at Supplier’s designated point of shipment; “Delivery” for Software occurs either when Supplier provides physical media (or the Equipment on which it is installed) to the carrier at Supplier’s designated point of shipment, or the date Supplier notifies Customer that Software is available for electronic download. Unless otherwise agreed, cost of transit insurance on behalf of Customer shall be included in the total price stated on the Quote.

3.3 Acceptance. All Products and Third Party Products will be deemed to be accepted upon Delivery. Notwithstanding such acceptance, Customer retains all rights and remedies under the warranty terms stated below. Customer may only return Products to Supplier that are permitted to be returned pursuant to the return policy at www.365Labs.com/returnspolicy.

4. Software Licenses.

Customer’s rights to use the Software delivered by Supplier are governed by the terms of the applicable end-user license agreement. Unless different terms have been agreed between the parties, the terms posted on www.365Labs.com/eula (the “EULA”) shall apply. Supplier will provide a hard copy of the applicable terms upon request. Unless expressly otherwise agreed, microcode, firmware or operating system software required to enable the Equipment with which it is shipped to perform its basic or enhanced functions, is licensed for use solely on such Equipment.

5. Services.

5.1 Support Services.

A. Scope and Term. Supplier shall provide Support Services in accordance with the applicable Service Description or Product Notice, for the (initial or renewal) period agreed in the applicable Order. Unless otherwise agreed therein, the initial Support Services procured together with the purchase of a Product start on the commencement date of the applicable warranty period (as specified in clause 7).

B. Support Availability and Release Cycles. Availability of Support Services is governed by Supplier’s “End-of-Service-Life” policies, to be made available to Customer upon request. Subject to such policies, Support Services for Software apply to the current and the immediately prior release of the Software.

C. Limitations. Support Services do not cover any of the following: (i) problems that are excluded from warranty coverage according to clause 7.4, below; (ii) problems that cannot be reproduced at Supplier’s facility or via remote access to Customer’s facility; (iii) onsite activities for Equipment that is located outside of the applicable service area (unless otherwise provided in a Service Description); (iv) providing media replacement, operating supplies, cosmetic accessories or parts such as frames, and cover or support on those items; or (v) repairing damage or defects in Equipment that are purely cosmetic and do not affect device functionality.

D. Maintenance Tools and Spare Parts. Supplier may, at its discretion, store tools and spare parts used by Supplier to perform diagnostic or remedial activities in connection with Products at the Customer’s site or on Customer’s systems, and Customer agrees that such are for use only by Supplier authorized personnel and further authorizes Supplier to remove and/or disable them when no longer needed by Supplier to provide its Services.

E. Replacements. All replaced Equipment or components thereof shall be returned to Supplier and become the property of Supplier upon receipt of the replaced Equipment or components at the specified Supplier facility unless specifically agreed otherwise in an Order. If Customer does not return a replaced component or Equipment within 15 days after receipt of Supplier’s request, then Customer must pay Supplier at the then-current spare parts list price for the Equipment or portions that Customer has failed to return. If Supplier determines that a component of a defective Equipment product is “customer-replaceable”, i.e. one that is easily disconnected and reconnected, or if the Supplier determines that the Equipment should be replaced as a whole, Supplier reserves the right to send Customer a component or whole replacement Equipment for exchange.

F. Data Responsibility. Supplier shall not access or use any Customer production data stored on the Products, unless Customer has expressly authorized Supplier to do so. Unless a data deletion service is expressly ordered from Supplier, Customer is responsible for removing all information and data stored on replaced parts, or on any other items or Product before it is returned to Supplier.

G. Customer-Initiated Changes. If the Product is covered by Support Services and Customer intends: (i) to relocate Equipment to a different installation site (where applicable to the Product); (ii) to change the hardware configuration on its own; or (iii) to deny the activation or to disable remote support features of a Product, Customer shall notify Supplier in advance. Where any of such action limits Supplier’s ability to provide Support Services for the affected Product or increases the Supplier’s cost of providing Support Services, Supplier is entitled to make the continuation of Support Services dependent on Customer paying a reasonable adjustment of the ongoing fees and a reasonable charge for any re-certification services Supplier reasonably considers necessary for continued support; agreed upon proactive support capabilities, response times, or other service levels may no longer apply.

5.2 Professional Services.

A. Scope of Services. Supplier shall provide Professional Services including any Deliverables (as defined below) in accordance with the applicable Service Description, SOW or other agreed upon documentation containing the specifics of such services (“Service Specification”). Professional Services are provided as a separate and independent service even if mentioned together with the sale or licensing of Products by Supplier in the same Order. Supplier is not providing legal or regulatory advice in any Professional Services. 

B. Grant of License Rights in Deliverables.

(1) “Deliverables” means any reports, analyses, scripts, code, or other work results that Supplier delivers to Customer within the framework of fulfilling obligations under a Service Specification. “Proprietary Rights” mean all patents, copyrights, trademarks, trade secrets, or other intellectual property rights of a party.

(2) Subject to Customer’s compliance with the terms of this CTS and any applicable Service Specification, Customer’s payment of applicable amounts due, and Supplier’s Proprietary Rights in any underlying intellectual property incorporated into any Deliverables or used by Supplier to perform Professional Services, Supplier grants Customer a non-exclusive, non-transferable, revocable (in case of non-payment, or any breach of this CTS or any applicable Service Specification) license to use (without the right to sublicense) the Deliverables provided by Supplier for Customer’s internal business purposes, only and solely in accordance with the applicable Service Specification and subject to this CTS. Customer may authorize its service providers to use the Deliverables, but solely on Customer’s behalf, solely for Customer’s internal business purposes, and Customer shall be responsible for service provider’s compliance with these restrictions.

(3) Supplier reserves for itself all Proprietary Rights that it has not expressly granted to Customer herein. The license granted in this clause 5.2B. does not apply to: (i) any Products; or (ii) items licensed or otherwise provided under a separate agreement. Supplier is not limited in developing, using, or marketing services or products that are similar to the Deliverables or Professional Services provided hereunder, any Service Specification, or, subject to Supplier’s confidentiality obligations to Customer, in using the Deliverables or performing similar Professional Services for any other projects.

C. Customer Furnished Materials. Customer retains its Proprietary Rights in materials it furnishes to Supplier for use in connection with the performance of Professional Services. Customer grants Supplier a non-exclusive, non-transferable right, under Customer’s Proprietary Rights, to use the Customer-provided materials solely for the benefit of Customer in fulfilling Supplier’s obligations under this CTS.

D. Responsibility for Personnel. Supplier is solely responsible for personnel placement as well as for all other human resource issues (e.g. vacation) concerning its personnel.

5.3 Customer Responsibilities. In connection with Support Services or Professional Services (if applicable), at no charge to Supplier, Customer shall: (i) provide Supplier personnel with timely access to appropriate facilities, space, power, documentation, files, data, information, additional software (if needed); (ii) use skilled and authorized Customer personnel to assist and cooperate with Supplier in the provision of the Services as reasonably requested by Supplier; (iii) be responsible for physical and network security and all conditions in its business necessary for due performance of Services; (iv) allow Supplier remote and onsite access to the Products and Customer’s infrastructure environment, as required; and (v) where applicable, promptly notify Supplier when Products fail and provide Supplier with sufficient details of the failure such that the failure can be reproduced by Supplier. For Professional Services, details may be set forth in the Service Specification.

5.4 Termination of Services. A termination for convenience of Services shall only be permitted if expressly agreed between the parties. Either party may terminate Services for material breach by the other party if such other party has failed to cure such breach within a reasonable grace period of no less than 30 days as set forth by the other party in writing.

6. Invoicing; Payment Terms and Taxes.

6.1 Invoicing. Supplier shall invoice the Offerings to Customer in the currency agreed in the Order. If Supplier is obligated by applicable law to collect and remit any taxes or fees, then Supplier will add the appropriate amount to Customer’s invoices as a separate line item in accordance with statutory requirements. Supplier may invoice parts of an Order separately or together in 1 invoice. All invoice terms will be deemed accurate unless Customer advises Supplier in writing of a material error within 10 days following receipt. If Customer advises Supplier of a material error, (a) any amounts corrected by Supplier in writing must be paid within 14 days of correction, and (b) all other amounts shall be paid by Customer by the due date. If Customer withholds payment because Customer believes an invoiced amount is incorrect, and Supplier concludes that the amount is accurate, Customer must pay interest on the unpaid disputed amount from the due date until Supplier’s receipt of payment. Customer may not offset, defer or deduct any invoiced amounts that Supplier determines are correct following the notification process stated above.

6.2 Payment Terms. Customer shall pay Supplier’s invoices in full and in the same currency as Supplier’s invoice within the time noted on Supplier’s invoice, or if not noted, then within 30 days after the date of the invoice, with interest accruing after the due date at the lesser of 1.5% per month or the highest lawful rate. In case of Customer’s default in payment Supplier shall, until arrangements as to payment or credit have been established, be entitled to: (i) cancel or suspend its performance of such Order and/or (ii) withhold performance under this CTS. Termination or expiration of this CTS shall not affect Customer’s obligation to pay all amounts due hereunder.

6.3 Taxes. The charges due hereunder are exclusive of, and Customer shall pay or reimburse Supplier for all value added (VAT), sales, use, excise, withholding, personal property, goods and services and other similar taxes, governmental fees, levies, customs and duties resulting from Customer’s purchase, except for taxes based on Supplier’s net income, gross revenue, or employment obligations. If Customer qualifies for a tax exemption, Customer must provide Supplier with a valid certificate of exemption or other appropriate proof of exemption. If Customer is required to withhold taxes, then Customer will within 60 days of remittance to the applicable tax authority provide Supplier with satisfactory evidence (e.g., official withholding tax receipts) that Customer has accounted to the relevant authority for the sum withheld or deducted, otherwise Supplier will charge Customer for the amount that Customer has deducted for the transaction.

7. Warranty.

7.1 Equipment Warranty. Supplier warrants that Equipment, under normal usage and with regular recommended service, will be free from material defects in material and workmanship, and that Equipment will perform substantially in accordance with the corresponding standard documentation issued by Supplier for the applicable Equipment. Unless provided otherwise in a Schedule, additional terms governing the limited warranties for Equipment are found at www.365Labs.com/warrantyterms or in the applicable documentation or Product Notice for the specific Equipment.  Supplier’s entire liability  for a breach of this warranty shall be for Supplier, at its option and cost, to repair or to replace the affected Equipment, and, if Supplier is unable to effect such within a reasonable time, then Supplier will refund the amount Customer paid for the affected Equipment as depreciated on a straight-line basis over a 5 year period, upon return of such Equipment to Supplier.

7.2 Software Warranty. The following terms apply to the specific Software (“Warranted Software”) listed in the table located at www.365Labs.com/content/dam/digitalassets/active/en/unauth/manual-warranty-informations/h4276–prod-warranty-maint-table.pdf (the “Software Warranty Table”). Supplier warrants that Warranted Software will substantially conform in all material respects to its then-current documentation during the applicable warranty period specified in the Software Warranty Table (the “Software Warranty Period”). Any breach of this warranty must be reported to Supplier during the Software Warranty Period. Customer’s sole and exclusive remedy and Supplier’s entire liability for a breach of this warranty is for Supplier, at its sole discretion, to either use commercially reasonable efforts to remedy the non-conformance or to terminate the license for the affected Software and provide a pro-rata refund of the license fees received by Supplier for such Software.

7.3 Services Warranty. Supplier will perform Services in a workmanlike manner in accordance with generally accepted industry standards. Customer must notify Supplier of any failure to so perform within 10 days after the date on which such failure first occurs. In such case, Supplier will use reasonable efforts to correct such failure within a reasonable period of time. If, after reasonable efforts, Supplier is not able to correct such deficiencies for reasons for which Supplier is responsible, then Customer may terminate the affected Services for cause by providing written notice to Supplier.

7.4 Limitations. The warranties set forth in this clause 7 do not cover problems that arise from: (i) accident or neglect by Customer or any third party; (ii) any third party items or services with which the Product is used or other causes beyond Supplier’s control; (iii) installation, operation or use not in accordance with Supplier’s instructions and the applicable documentation; (iv) use in an environment, in a manner or for a purpose for which the Product was not designed; (v) modification, alteration or repair by anyone other than Supplier personnel or (vi) causes attributable to normal wear and tear. Supplier has no obligation for: (1) Software installed or used beyond the licensed use, or (2) Product whose original identification marks have been altered or removed. Products and Services are not fault-tolerant and are not designed or intended for use in hazardous environments requiring fail-safe performance, such as any application in which the failure of the Products or Services could lead to death, bodily injury, or physical or property damage (collectively, “High-Risk Activities”). Supplier expressly disclaims any express or implied warranty of fitness for High-Risk Activities.

7.5 Warranty Disclaimer. Other than the warranties set forth in this clause 7 and the Schedules, and to the maximum extent permitted by applicable law, Supplier and Supplier Affiliates: (i) make no other express warranties; (ii) disclaim all implied warranties, including merchantability, fitness for a particular purpose, title and non-infringement; and (iii) disclaim any warranty arising by statute, operation of law, course of dealing or performance or usage of trade.

8.   Limitation of Liability.

8.1 Limitations on Damages. The limitations, exclusions and disclaimers stated below apply to all disputes, claims or controversies (whether in contract, tort (including negligence) or otherwise) related to or arising out of the CTS or any Quote or Order (“Dispute”). The terms of this clause are agreed allocations of risk constituting part of the consideration for Supplier’s and its Affiliates’ sale of Products and Services to Customer and will apply even if there is a failure of the essential purpose of any limited remedy, and regardless of whether a party has been advised of the possibility of the liabilities.

A.  Limitation on Direct Damages. Except for Customer’s obligations to pay for Offerings, Customer’s violation of the restrictions on use of Products and Services or Supplier’s or its Affiliates’ intellectual property rights, Supplier’s (including its suppliers) and Customer’s total liability arising out of any Dispute or any matter under this CTS, is limited to the amount Customer paid to Supplier during the 12 months before the date that the matter or Dispute arose for the Product, Services or both that are the subject of the Dispute, but excluding amounts received as reimbursement of expenses or payment of taxes.  Notwithstanding anything otherwise set forth above, Supplier (and its suppliers) shall have no liability for any direct damages resulting from Customer’s use or attempted use of Third Party Software, Free Software or Development Tools, all defined in the EULA described in clause 4 above, or Third Party Products.

B.  Disclaimer of Certain Other Damages. Except for Customer’s payment obligations and violation of Supplier’s or its Affiliates’ intellectual property rights, neither Supplier (and its suppliers) nor Customer has liability to the other for special, consequential, exemplary, punitive, incidental or indirect damages, or for lost profits, loss of revenue, loss or corruption of data, loss of use or procurement of substitute products or services.

8.2 Prevention and Mitigation. Customer is solely responsible for its data. Customer shall implement IT architecture and processes enabling Customer to prevent and mitigate damages in line with the criticality of the systems and data for Customer’s business and its data protection requirements, including a business recovery plan. In that regard, Customer shall: (i) provide for a backup process on a regular (at least daily) basis and backup relevant data before Supplier performs any remedial, upgrade or other works on Customer’s IT systems; (ii) monitor the availability and performance of its IT environment during the performance of Services; and (iii) promptly react to messages and alerts received from Supplier or through notification features of the Products and immediately report any identified issue to Supplier. To the extent that Supplier has any liability for data loss, Supplier shall only be liable for the cost of commercially reasonable and customary efforts to recover the lost data from Customer’s last available backup.

8.3 Limitation Period. Except as stated in this clause, all claims must be made within the period specified by applicable law. If the law allows the parties to specify a shorter period for bringing claims, or the law does not provide a time at all, then claims must be made within 18 months after the cause of action accrues.

9. Third Party Products.

Supplier may offer to supply Third Party Products that are provided by a third party manufacturer/supplier, e. g. under Supplier’s “365Labs  Select” program, Supplier’s “Brokerage” program or Supplier’s Software & Peripherals (S&P) program, and may include offerings from Supplier Affiliates using different brands other than “365Labs” or “365Labs ”. Notwithstanding any other provisions herein, such Third Party Products are subject to the standard license, services, warranty, indemnity and support terms of the third party manufacturer/supplier (or an applicable direct agreement between Customer and such manufacturer/supplier), to which Customer shall adhere. Even if support fees are invoiced through Supplier, such Third Party Products are not supported by Supplier and Customer shall contact such third party directly for support. Any warranty, damages or indemnity claims against Supplier in relation to such Third Party Products are expressly excluded. References to warranty and support information for 365Labs  Select products is currently available through www.365Labs.com/offeringspecificterms.

10. Confidentiality.

10.1 Scope. “Confidential Information” shall mean any information, pricing, technical data or know-how furnished in connection with the scope of this CTS, whether in written, oral, electronic, website-based, or other form, by a Customer or a Customer Affiliate to Supplier or a Supplier Affiliate or vice versa and that: (i) is marked, accompanied or supported by documents clearly and conspicuously designating such documents as “confidential”, “internal use” or the equivalent; (ii) is identified by the discloser as confidential before, during or promptly after the presentation or communication; or (iii) should reasonably be known by the recipient to be confidential. Confidential Information does not include information that is: (a) rightfully in the receiving party’s possession without prior obligation of confidentiality from the disclosing party; (b) a matter of public knowledge (or becomes a matter of public knowledge other than through breach of confidentiality by the other party); (c) rightfully furnished to the receiver by a third party without confidentiality restriction; or (d) independently developed by the receiver or its Affiliates without reference to the discloser’s Confidential Information.

10.2 Protection. Each party shall ensure that, where it or one of its Affiliates is the receiver of Confidential Information hereunder, the receiver shall (a) use Confidential Information of the discloser only for the purposes of exercising rights or performing obligations in connection with this CTS or any Order hereunder; and (b) protect from disclosure to any third parties any Confidential Information disclosed by the discloser, both for a period commencing upon the date of disclosure until 3 years thereafter. Subject to the terms of this Section 10, the foregoing obligations shall never expire in relation to technical information about a discloser’s products and services or any information about possible unreleased products or services, and shall survive any termination or expiration of this CTS.  

10.3 Exceptions. Notwithstanding the foregoing, either party and its Affiliates may disclose Confidential Information (1) to an Affiliate, or to a subcontractor used by Supplier to provide Services under this Agreement, as long as the Affiliate or subcontractor has a need-to-know and complies with the foregoing; (2) to either party’s directors, officers, employees, and professional advisors and those of its Affiliates, and (3) if required by law or regulatory authorities provided the receiver has given the discloser prompt notice. For the purposes of this clause 10.3, “Affiliates” of Supplier include other members of 365Labs Technologies group.  

11. Term and Termination of this CTS.

This CTS is effective upon the earlier of an Order or Customer’s acceptance of the CTS and continues until it is terminated in accordance with this clause. Either party may terminate this CTS for material breach by the other party if such other party has failed to cure the breach within a reasonable grace period of no less than 30 days as set forth by the other party in writing. A termination of this CTS shall not affect any previously placed Orders.

12. General.

12.1 Governing Law; Jurisdiction. The CTS and any Dispute is governed by the laws of the State of LA  (excluding the conflicts of law rules) and the federal laws of the United States. The U.N. Convention on Contracts for the International Sale of Goods does not apply. To the extent permitted by law, the state and federal courts located in LA will have exclusive jurisdiction for any Disputes. Customer and Supplier agree to submit to the personal jurisdiction of the state and federal courts located within East Baton Rouge Parish “County”, LA, and agree to waive any and all objections to the exercise of jurisdiction over the parties by those courts and to venue in those courts.

12.2 Trade Compliance. Customer’s purchase of Offerings and access to related technology (collectively, the “Materials”) are intended for its own use, not for resale, export, re-export, or transfer. Customer is subject to and responsible for compliance with the export control and economic sanctions laws of the United States, the European Union and other applicable jurisdictions. Materials may not be used, sold, leased, exported, imported, re-exported, or transferred except in compliance with such laws, including, without limitation, export licensing requirements, end user, end-use, and end-destination restrictions, prohibitions on dealings with sanctioned individuals and entities, including but not limited to persons on the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons List, or the U.S. Department of Commerce Denied Persons List. Customer represents and warrants that it is not the subject or target of, and that Customer is not located in a country or territory (including without limitation, North Korea, Cuba, Iran, Syria, and Crimea) that is the subject or target of, economic sanctions of the United States, European Union or other applicable jurisdictions.

12.3 Customer Responsibility.  Customer agrees that it will obtain all necessary rights, permissions and consents associated with: (a) technology or data (including personal data) that Customer and its Affiliates provide to Supplier or its Affiliates, and (b) non-Supplier software or other components that Customer and its Affiliates direct or request that Supplier or its Affiliates use with, install, or integrate as part of the Supplier’s Offerings. Customer is solely responsible for reviewing data that will be provided to or accessed by Supplier in the provision of the Offerings to ensure that it does not contain: (i) data that is classified, ITAR (International Traffic in Arms Regulations) related data, or both; or (ii) articles, services, and related technical data designated as defense articles and defense services. Customer will defend and indemnify Supplier and its Affiliates against any third party claim resulting from a breach of the foregoing, or from Customer’s infringement or misappropriation of intellectual property rights of Supplier, its Affiliates or third parties.

12.4 Encryption. Customer certifies that all items (including hardware, software, technology and other materials) it provides to Supplier for any reason that contain or enable encryption functions either (a) satisfy the criteria in the Cryptography Note (Note 3) of Category 5, Part 2 of the Wassenaar Arrangement on Export Controls for Conventional Arms (Wassenaar Arrangement) and Dual-Use Goods and Technologies and Category 5, Part 2 of the U.S. Commerce Control List (CCL) or (b) employ key length of 56-bit or less symmetric, 512-bit asymmetric or less, and 112-bit or less elliptic curve or (c) are otherwise not subject to the controls of Category 5, Part 2 of the Wassenaar Arrangement and Category 5, Part 2 of the CCL. Supplier is not responsible for determining whether any third party product to be used in the products and services satisfies regulatory requirements of the country to which such products or services are to be delivered or performed. Supplier shall not be obligated to provide any product or service where the product or service is prohibited by law or does not satisfy the local regulatory requirements.

12.5 U.S. Government Restricted Rights. The software and documentation provided are “commercial products” as defined in Federal Acquisition Regulation (“FAR”) Section 2.101, consisting of “commercial computer software” and “commercial computer software documentation” as these terms are used in FAR 12.212 and Defense Federal Acquisition Regulation Supplement (“DFARS”) Section 227.7202, as applicable. Consistent with FAR 12.212 and DFARS Section 227.7202, all U.S. Government end users acquire the software and documentation with only those rights set forth herein.

12.6 Entire Agreement. This CTS, the Schedules and each Order hereunder comprise the complete statement of the agreement of the parties regarding the subject matter thereof and may be modified only by written agreement. Pre-printed terms on any Order or any term or condition on a Customer form, have no legal effect and do not modify or supplement the CTS, even if Supplier does not expressly object to those terms when accepting a Customer Order. The Schedule(s) and information which are incorporated by reference (including reference to information contained in a URL or policy) form an integral part of this CTS.

12.7 Force Majeure. Neither party shall be liable to the other for any delay or failure to perform any of its obligations (other than for the payment of fees) caused by Force Majeure. If such delay or failure lasts longer than 30 days, then the other party may immediately terminate, in whole or in part, the relevant Order by giving written notice to the delayed party. “Force Majeure” refers to circumstances beyond a party’s reasonable control including, without limitation, act of God, war, riot, civil commotion, terrorist acts, malicious damage, governmental or regulatory actions, accident, breakdown of plant or machinery, local or national emergency, explosions, fire, natural disasters, severe weather or other catastrophes, epidemics/pandemics, general import/export/customs process problems affecting supplies to Supplier or to Customer, shortages in materials, failure of a utility service or transport network, embargo, strike, lock out or other industrial dispute (whether involving Supplier’s workforce or any other party), or default of suppliers or subcontractors due to any of the preceding events.

12.8 Assignment and Subcontracting. Neither party shall assign, transfer or novate this CTS, any Order, or any right or obligation thereunder or delegate any performance without the other party’s prior written consent, which consent shall not be unreasonably withheld. Notwithstanding the foregoing: (i) Supplier may use Affiliates or other qualified subcontractors to perform it obligations hereunder, provided that the relevant party to the Order shall remain responsible for the performance thereof; and (ii) either party may assign rights to payments arising under any Order without consent of the other party.

12.9 Independent Contractors. The parties are independent contractors for all purposes under this CTS and cannot obligate any other party without prior written approval. The parties do not intend anything in this CTS to allow any party to act as an agent or representative of a party, or the parties to act as joint venturers or partners for any purpose. No party is responsible for the acts or omissions of any other.

12.10 Third Party Rights. There are no third party beneficiaries to this CTS or any Order under any laws.

12.11 Waiver and Severability. Failure to enforce a provision of this CTS will not constitute a waiver of that or any other provision of this CTS. If any part of this CTS or an Order is held unenforceable, the validity of the remaining provisions shall not be affected.

12.12 Notices.  The parties will provide all notices under this CTS in writing.  Customer must provide notices to Supplier at the 365Labs email address on the first page of the CTS.