Updated as of April 12, 2023
These Spanning Product Terms of Use (“Terms of Use”) govern your use of the Spanning Products and Services (collectively referred to herein as the “Products”). By purchasing or using the Product, you agree to be bound by these Terms of Use, which are incorporated into the Kaseya Master Agreement (the “Agreement”) entered into by you, Spanning, Inc. and Spanning’s affiliated companies including its parent company Kaseya Holdings, Inc. and Kaseya’s affiliates (“Spanning,” “us,” or “we”). Capitalized terms not defined in these Terms of Use have the meaning given to them in the Agreement.
If You do not agree to these Terms of Use and the Agreement, you may not register, access or use the Products.
1. USE OF PRODUCTS
a. Right to Use. Subject to your compliance with these Terms of Use, the Agreement and the receipt by us of all fees applicable to the Product, we grant you a limited, revocable, non-sublicensable, non-exclusive right and license to access and use the Spanning Product for the number of licenses/seats (“Licenses”) in each Product Account in accordance with the Product Specifications. Unless otherwise specified, you will receive the current standard Product features and functionality (such as number and frequency of backups) for the applicable Retention Plan and for the number of Licenses in each Product Account.
b. Product Accounts and Licenses. Each Product Account backs up data of individual users associated with an existing tenant (for Microsoft), domain (for Google) or organization (for Salesforce) (each a “User” and a “Tenant,” respectively). Licenses are required for all protected Users allocated to a Product Account regardless of status (e.g., active, paused, archived) or other specified seat usage in accordance with the Product Specifications.
c. Account Registration/Set up. You are required to set up each Product Account in accordance with the Product Specifications. During set up, you agree to provide accurate and complete information, and to promptly update this information should it change. Each User designated for backup at the time of set up will use an available License that has already been purchased.
d. Adding Users After Initial Set-Up. Users may be added to a Product Account after initial set up by an administrator of the Account (“Admin”) either manually or through an enabled automatic-add feature. Users manually added will use an available license that needs to have been previously purchased. Users may be automatically added only if the auto-purchase feature is turned on, and will use an available license (previously purchased) or will automatically provision an additional license. You acknowledge that you are responsible for any additional Licenses or features you enable for each Product Account.
e. Backup Process. The term “Tenant” means the third party website or web-based application or service (such as, for example, Microsoft O365, Google Workplace or Salesforce) with which the Product interacts to obtain copies of Content that exists on the Tenant. We will use commercially reasonable efforts to save a copy of the Content that you have designated for backup to a server operated by us. In accordance with the Order and Documentation, we will automatically poll the API of a Tenant for changes or additions to the Content and periodically re-save a copy of a modified file or create a copy of a newly designated file. You, on behalf of Users and for yourself, hereby authorize us to access and interact with the Tenants so the Product can retrieve and store copies of the Content.
f. Additional Data Processing Terms. If a Product Account is configured to store Content in the European Economic Area or the United Kingdom, the Kaseya European Data Processing Addendum is incorporated into these Terms of Use. A copy of our European Data Processing Addendum is available upon request from your Kaseya sales representative. If a Product Account is used to process personal information of California consumers, under the California Consumer Privacy Act of 2018, as amended from time to time (collectively the “CCPA”), we are a “service provider” with respect to the personal information of California consumers we process. We will not sell such personal information and will not retain, use or disclose such personal information for any purpose other than for those described in these Terms of Use, or as otherwise permitted by the CCPA or applicable law.
g. Rights and Responsibilities Regarding Content and Product Use.
(i). License to Content. On behalf of or as the User, you (i) represent and warrant that you and/or the User have sufficient rights and all required third party consents, permissions or licenses in and to the Domain and Content as may be necessary and appropriate for use of the Content with the Product; and (ii) hereby authorize us to access and interact with the Domain to retrieve Content; and (iii) hereby grant to us a limited, royalty-free, non-exclusive, assignable license to copy, reformat, disclose, transmit, scan, display and otherwise use the Content as necessary or desired, in each case solely for the purposes of providing the Product, related Service or as otherwise necessary for the us to exercise our rights under these Terms of Use. You and/or the applicable User is responsible for the accuracy, quality and legality of the Content, and the means by which rights to the Content for use with the Product were acquired.
(ii). You must maintain authorization and access to the Tenants so that we are regularly able to access it for purposes of providing the Product. You agree and acknowledge that Content may not be available or restorable a) if our access authority to a Tenant is changed or otherwise restricted; b) due to unavailability of the Tenant, or any portion thereof; c) if the provider Tenant (such as Microsoft, Google or Salesforce) amends its API guidelines in such a way that affects our ability to access the Tenant to provide the Product; and/or d) with respect to modifications to the Content that are not captured in the backup frequency or retention schedule for the Retention Plan chosen.
(iii). Managed Service Provider Responsibilities Regarding Content and Product Use. If you are a managed service provider or other third-party (“MSP”) managing or using the Product on behalf of another entity such as a client (a “Client”), you represent and warrant that you are acting as an agent on behalf of the Client and that you are acting within the scope of your agency. Accordingly, you agree to obtain your Client’s authorization and comply with Client’s instructions at all times with respect to use of the Product and access to Content, including but not limited to: backup settings, access controls, management, retention and deletion of Content, transition of a Product Account or Content to a different third-party, and transition assistance and cooperation upon termination or expiration of any relationship between or among you, your Client and/or us. We expressly may rely on your authorization with respect to access and control of a Product Account or Content.
(iv). Spanning’s Use of Content. Except for the limited license granted hereunder, you, your Client or the User (as applicable) retain all of existing rights in and to Content. We will use and process the Content only as necessary to provide and support the Products and will not otherwise access Content other than as permitted under the, these Terms of Use, or as authorized by you for support.
(v). Client Terms for Managed Accounts. If you are an MSP managing the Product for a Client or if you authorize a Client to directly use or support a Product, you must ensure that the Client agrees to the Spanning Client Terms in substantially the form attached as Exhibit A hereto as part of a valid, enforceable contract between you and the Client.
2. PRODUCT SUBSCRIPTIONS and RETENTION
a. Product Subscription Required. All Product licenses must be included in a valid Product subscription (“Subscription”) for which we receive timely payment. A Subscription covers a pool of Licenses that have the same Committed Service Term and Retention Plan. Subscriptions may be purchased for individual organizations/Tenants or, if you are an MSP, you may purchase a Subscription that is assigned by you to different organizations and their Tenants.
b. Retention Plans. We offer two Retention Plans with respect to each Subscription: “Unlimited Retention” or “One-Year Retention.” With respect to both Retention Plans, you will choose the retention period for backups of Content, provided that the One-Year Retention Plan period must be one year or less. That said, with respect to Salesforce, the Product only allows for the Unlimited Retention Plan. The retention setting determines how long Content associated with a Tenant is retained.
c. Retention Explained. Depending on the Retention Plan and the chosen retention setting within the plan, we will maintain data for a User as long as there is a Product license assigned to the User, even if the User is deleted from the Tenant. Retention is based on the age of an item as determined by the last modified timestamp, and items with a last modified timestamp greater than the configured retention are deleted and no longer available to be restored. Backups are taken once every day.
d. Retention Example. For example, if OneDrive Retention is set to 2 years, and you create a new document in OneDrive, the Product will detect and backup the file. If you make no changes to the file, the backup will be deleted in after 2 years. If you update the file a year after creation, when the 2 year anniversary arrives, the Product will delete the first version of the document, but not the second. If you delete the file the day after creation, the version of the file will be deleted from the Product on the 2 year anniversary.
e. Limitations on Storage. Access and use of the Product is subject to Fair Use and Excessive use policies that prohibit use that (i) results in excessive bandwidth or storage; (ii) harms the Product, networks or other resources; and/or (iii) circumvents the intended use of the Product. Further, the following scenarios are Excessive Use and will result in an Excessive Use fee, in our then-current standard amount:
• If you are not an MSP: pooled storage across a Microsoft 365 or Google Workspace Tenant that exceeds an average of 100GB per License for a period of two (2) consecutive months or more. In such cases, we may charge you our then-current Excessive Use Fee, with a minimum quantity of 1TB.
• If you are an MSP: pooled storage across all Microsoft 365 and Google Workspace Tenants that exceeds an average of 100GB per License for a period of two (2) consecutive months or more. In such cases, we may charge you our then-current Excessive Use Fee, with a minimum quantity of 1TB.
f. Committed Service Term and High Watermark. If Product Licenses are purchased for a Committed Service Term, that Committed Service Term will apply for the initial License(s) and for any Licenses added to the same Subscription. The number of Licenses, including any Licenses added after the initial purchase, may not be decreased during the then-current Committed Service Term. We reserve the right to monitor usage and retroactively invoice for actual use that was not properly reflected on invoices.
g. Renewals, Cancellation and Adjustments. Unless timely cancelled or adjusted by you, the term of any Subscription will automatically renew for a Committed Service Term and number of Licenses equal to that of the expiring Subscription. However, by providing us at least thirty (30) days’ written notice prior to the end of a Committed Service Term, you may cancel automatic renewal of the Committed Service Term, or you may adjust the number of Licenses downward upon renewal.
h. Export and Deletion of Content. At any time prior to the termination of a Product Account, you may export Content from your Product Account via download. An active Subscription is required for export and download. We reserve the right to delete Content thirty (30) days after termination of a Product Account. After such periods, we have no obligation to maintain or provide any Content.
i. License Invoicing and Financial Terms. An Order for a license is automatically generated when you provision a new license for a Spanning. Subscription fees are invoiced in advance, either monthly or annually. Payments for Subscriptions will be charged to the applicable payment method indicated. We may terminate any Subscription for non-payment that is not cured within thirty (30) days after receiving written notice.
3. ACCESS AND SECURITY
a. Your Responsibility for Security. You are responsible for the proper configuration and maintenance of physical, administrative and technical safeguards as they relate to access to and use of the Product and Content. In no event will we be responsible, nor will we have any liability, for physical, administrative, or technical controls related to the Product that you control, including but not limited to network connectivity and internet connectivity.
b. Our Security. We use physical, technical and administrative safeguards designed to secure Content under our control against accidental or unauthorized loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities and you use the Products with all Content at your own risk.
c. Customer Management and Support Information. Certain customer management and support information may be hosted in the United States regardless of where you choose to have Content stored. You are responsible for securing any necessary consents related to the hosting location of such data.
Exhibit A
Spanning Client Terms
These Client Terms (“Terms”), apply to you as the entity that owns, licenses, or lawfully controls the content (“Content”) in a Spanning product account (“Product”). Spanning does not provide the Product directly to you. The Product is sold and provided by Spanning or one of its subsidiaries or affiliates (“Spanning”) directly to the reseller/managed service provider (“Administrator”) who will (a) use and manage the Product on your behalf with your Content; or who may (b) authorize you to access, use or manage the Product yourself, in which case you will be considered Client Administrator of the Product.
RIGHTS TO THE PRODUCT
You acknowledge that Spanning and its licensors own all intellectual property rights in and to the Product. You will not engage in or authorize any activity that is inconsistent with such ownership
Spanning’s Use of Content. Spanning will use Content only as necessary to provide and support the Product and will not otherwise access Content other than as permitted herein, as described in the Product Specifications or as authorized by an Administrator for support.
Spanning’s Rights. In the event that Spanning reasonably believes Content or related Product use violates these terms, including any Fair Use policies in the Product Specifications, may disrupt or threaten the operation or security of any computer, network, system or the Product, or may otherwise subject Spanning to liability, Spanning reserves the right to refuse or disable access to the Product or Content. Spanning may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with law or any judicial, regulatory or other governmental order or request. Spanning will use reasonable efforts to contact the Administrator prior to taking such action. Notwithstanding the foregoing, Spanning may restrict access to any Product or Content without prior notice as required to comply with law or any judicial, regulatory or other governmental order or request. In the event that Spanning takes any such action without prior notice, Spanning will provide notice to the Administrator, unless prohibited by law.
Use of Aggregate Data. Notwithstanding anything else in these Terms or otherwise, Spanning may evaluate and process use of the Product and Content in an aggregate and anonymous manner, meaning in such a way that the individual is not or no longer identified or identifiable and compile statistical and performance information related thereto (referred to as “Aggregate Data”). Aggregate Data includes utilization statistics, reports, and logs aggregated with data from other Spanning customers. Spanning may use, process and share such Aggregate Data with third parties to improve the Products, develop new products, understand and/or analyze usage, demand, and general industry trends, develop and publish white papers, reports, and databases summarizing the foregoing, and generally for any purpose related to Spanning’s business. Spanning retains all intellectual property rights in Aggregate Data. For clarity, Aggregate Data does not include any personally identifiable information nor identify any Client or individual.
Right to Change Products. Spanning may make changes to its Products through updates and upgrades that offer new features, functionality, and efficiencies (“Enhancements”). Spanning reserves the right to add new Products and Enhancements and to replace or discontinue Products or Enhancements at any time.
Right to Interact with Products. You agree that Spanning may and you hereby authorize Spanning to interact remotely with any deployed Product in order to test, troubleshoot, update, analyze use of or modify the Product or the environment in which it operates.
ADMINISTRATOR
Spanning will interact with the Administrator(s) you appoint to operate and manage use of the Product with your Content. You are not a third-party beneficiary of any agreement between Spanning and an Administrator.
An Administrator is not an agent of Spanning and is not authorized to make any representations or warranties on behalf of Spanning regarding the Product or its use.
You are responsible for instructing and authorizing the Administrator with respect to use of the Product including backup settings, management, retention and deletion of Content, and transition of Product or Content to a different Administrator, and transition assistance and cooperation upon termination or expiration of any relationship between or among Administrator, you and/or Spanning.
You expressly agree that Spanning may rely on the instructions and authorization of the Administrator with respect to use and support of the Product and access and control of your Content.
YOUR DIRECT USE OF A PRODUCT
If the Administrator authorizes you to access or use a Product directly, you are responsible for all actions you take with respect to use of the Product including backup settings and management, retention and deletion of Content and Spanning may rely on your instructions as an authorized administrator of the Product.
Any support for the Product is provided to you by the Administrator and not directly by Spanning.
SECURITY
Spanning has implemented and maintains physical, technical and administrative measures designed to help secure Content under Spanning’s control against accidental or unlawful loss, access or disclosure. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge and agree that despite the reasonable measures employed, the Products and Content are not guaranteed against all security threats or other vulnerabilities.
You acknowledge and agree that the Administrator you authorize to manage use of the Product on your behalf has access to and manages your Content. You and/or the Administrator are responsible, and in no event will Spanning be responsible, for any physical, administrative, or technical controls related to Products or Content not under the exclusive control of Spanning, including but not limited to , passwords or other access credentials, LAN or internet connectivity. You and/or the Administrator are responsible for the proper configuration and maintenance of security measures and for determining the security measures appropriate for the Content
INDEMNIFICATION
You will defend, indemnify and hold harmless Spanning from and against any loss, cost, liability or damage, including attorneys’ fees, for which Spanning becomes liable arising from any claim relating to your Content, including if it a) infringes or misappropriates the intellectual property rights or other rights of a third party; b) violates any applicable law; or c) otherwise is in violation of these Client Terms or the applicable Product Terms of Use.
LIMITATIONS OF LIABILITY
THE SPANNING PRODUCT IS PROVIDED “AS IS.” TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, SPANNING DISCLAIMS ANY AND ALL PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA ACCURACY, DATA SECURITY, OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING OR USAGE OF TRADE. SPANNING DOES NOT WARRANT THAT THE PRODUCT WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT THE OPERATION OF ANY PRODUCT WILL BE SECURE, UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED.
SPANNING MAKES NO REPRESENTATIONS OR WARRANTIES ABOUT THE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY USER OR INDUSTRY AND DISCLAIMS ALL LIABILITY ASSOCIATED THEREWITH.
THE PRODUCT MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SPANNING IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
SPANNING DISCLAIMS ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, TRANSMISSION OR SHIPMENT OF CONTENT BY OR ON BEHALF OF SPANNING.
TO THE FULLEST EXTENT ALLOWED BY LAW, IN NO EVENT WILL SPANNING OR ANY ITS LICENSORS OR SUPPLIERS BE LIABLE FOR ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, LOST REVENUES, COSTS OF DELAY, FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR THE COST OF RECREATING THE SAME, EVEN IF DATTO HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. IN NO EVENT WILL DATTO BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY SPANNING, AN ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF SPANNING’S OBLIGATIONS HEREUNDER.
