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End User License Agreement

By using Phanfare℠ you agree to the following End User License Agreement. Please read this carefully.

Date of last revision: June 6th, 2011

General. This End User License Agreement, including the Privacy Policy and Pricing Policy, which are incorporated herein by this reference and which you can access by navigating the tabs above or by clicking on each of the hyperlinks above (collectively, the "Terms"), are a binding contract between you and Carbonite, Inc. ("Carbonite"). You may print the foregoing documents using the print function in your browser. You understand and agree that by installing, accessing, or using the capability to create and manage online photo and video albums via the Internet (the “Phanfare Service”), and any other software, products, services, applications and associated documentation and Enhancements available at www.phanfare.com, including deriviate sites (collectively, the "Carbonite Products"), you will be bound by these Terms. If you agree to these Terms on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to these Terms and your agreement to these Terms will be treated as the agreement of the business or organization. In that event, "you" and "your" will refer to and apply to the user of the Carbonite Products or that business or organization, as required by the context. If you do not agree with these Terms, Carbonite is not willing to license to you and you may not use the Carbonite Products.

Your License. The Carbonite Products are licensed and not sold to you. During the term of your subscription, Carbonite grants to you a revocable, limited, non-transferable, non-exclusive license to use the Carbonite Products, solely in connection with the backup of your data, or for the Phanfare Service, the storage, sharing and display of your photos and videos. Except for the limited license granted in these Terms, Carbonite and its licensors retain all right, title and interest in and to the Carbonite Products, all copies thereof, and all proprietary rights therein, including copyrights, patent, trademark and trade secret rights. You may not copy or distribute the Carbonite Products, except to the extent that copying is necessary to use the Carbonite Products for the purposes set forth herein. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of the Carbonite Products. You may not alter or modify any disabling mechanism that may be included in the Carbonite Products. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer the Carbonite Products, or directly or indirectly permit any third party to copy the Carbonite Products. You may not remove any proprietary notices (e.g., copyright and trademark notices) from the Carbonite Products. You must reproduce the copyright and all other proprietary notices displayed on the Carbonite Products and on each permitted backup or archival copy. All use of the Carbonite Products shall be in accordance with these Terms and its then-current documentation. You shall be solely responsible for ensuring that your use of the Carbonite Products is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

Fees and Renewals. You agree to pay Carbonite's then-current and applicable subscription fees for the Carbonite Products, including the Phanfare Service. Unless you notify Carbonite that you do not want your subscription to be auto-renewed, you agree that Carbonite will automatically renew your subscription to the Carbonite Products and automatically charge you the then-current renewal fees for such renewed subscription using the credit card associated with your subscription.

Please note: Phanfare has discontinued the lifetime subscription program for the Phanfare Service. If you were a lifetime subscriber with Phanfare and you are continuing to use the Phanfare Service after June 30, 2011, you agree that you are now a customer of Carbonite and, as a Carbonite customer, your account has been converted to an annual Premium account and Carbonite has deposited $299.95, your original purchase price in Phanfare as a credit into your account. This credit can be used towards the purchase of additional Phanfare Service, renewals, or custom photo products. This credit will expire if not used by June 30, 2014. Upon continued use of the Phanfare Service or other Carbonite Products after June 30, 2011, the cost of the annual subscription fee will be applied against this credit.

Account Access and Ownership. In order to use the Carbonite Products, you must be able to access the Internet. This may include access to a computer, modem or any other necessary equipment. To access and use the Carbonite Products, you agree to provide Carbonite with accurate and complete information when you register and to keep such information accurate and complete while you have a subscription for the Carbonite Products. You are solely responsible for maintaining the confidentiality of your user name and password and solely responsible and liable for any and all activities that occur with respect to your account. Compromise of your username and password may compromise the security of the photos and videos you choose to back up with Carbonite (your “Backed-Up Data”). The credit card holder associated with a subscription is the owner of the account. All users of the Phanfare Service sign up for a trial membership which provides access to the full features of paid membership for 14 days (an “Evaluation Version”). Members with an Evaluation Version must convert to and pay for paid membership before the evaluation period expires or their photo and video data will be removed from the Phanfare Service. No matter when you purchase the paid membership during the evaluation period, your first year of paid membership period will not begin until end of the evaluation period.

Excessive Use Policy. Carbonite may, in its sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Carbonite Products, including the Phanfare Service, and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network, compute and storage resources and to take such technical and other remedies as we deem appropriate. Your consumption of the Phanfare Service may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of users of the Phanfare Service. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan of the Phanfare Service that will permit you to continue to use the Phanfare Service. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to use the Phanfare Service and any license to use the Carbonite Products, without prior notice in the event of a violation of this policy.

Photo Content, Video Content Data. You acknowledge and agree that Carbonite is not responsible or liable for the pictures, videos, content, and usage of your online photo and video albums. If you post a comment to a Phanfare album, you understand and agree that anyone with access to the album will be able to access, use and/or disclose any information that you include in any such comment (including, without limitation, any personal information such as your name, e-mail address, etc.). You agree not to store or share through the Phanfare Service or the Phanfare Website, or order photo merchandise with; among other items: credit card data, credit card numbers or financial or credit histories of individuals; social security numbers; sexually explicit, pornographic, harassing, abusive, harmful or obscene photos, video or information; information on an individual's health status; racist or sexist photos or video; stolen or fraudulent photos or video; photos, video or information related to illegal gambling, sweepstakes or other games of chance; information or content that infringes on the intellectual property rights of another third party; or any otherwise illegal information.

Copyright. As a user of the Phanfare Service, you grant to Carbonite, and represent and warrant that you have the right to grant to Carbonite, a perpetual, non-exclusive, transferable, fully paid, worldwide license (with the right to sublicense) to use, copy, publicly perform, publicly display, reformat, translate, excerpt (in whole or in part) and distribute User Content for the purpose of displaying your photos, videos, and meta-data to your viewers on your behalf. If you believe that your information or any other material has been used on the Phanfare Website in a manner that constitutes copyright infringement, please provide our Copyright Agent with a written notice (e-mail is sufficient) that includes the following information:

  • an electronic or physical signature of a person authorized to act on behalf of the owner of the exclusive right that is allegedly infringed;
  • identification of the copyrighted work claimed to have been infringed;
  • a description of where the material that you claim is infringing is located on the Phanfare Website;
  • your address, telephone number, and e-mail address;
  • a statement by you that have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law;
  • a statement by you, under penalty of perjury, that the information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf;

For notice of claims of copyright infringement on this Website please contact legal@carbonite.com.

Data Storage. You understand and agree that all photos and video shared using the Phanfare Service will be stored on Carbonite’s servers and/or Carbonite’s third party partner servers. Carbonite assumes no responsibility for the deletion or failure to store any data or other information included by you on the Phanfare Service. Total network traffic for paying members is limited to 100 GB upstream to Carbonite per user per year and 15 GB downstream from Carbonite per user per month. Management of your photos and videos via the client, as well as viewing your collection on the web contribute to your measured network traffic. This limit is intended to serve the needs of consumers and may be increased or decreased from time to time as Carbonite understands general trends in usage. Individual images are limited to 20 MB, at the time of upload. 20 MB is intended to accommodate the largest JPEG images created by digital cameras today at highest resolution. RAW files, allowed after purchasing a RAW block, are limited to 100 MB. Video movie clips (AVI, MPEG, MOV, WMV, etc) are limited to 20 min in length and 2.0 GB in size. Longer or larger movie clips will not be retained. For Phanfare Premium and Phanfare Pro, videos larger than 640 pixels in width or 480 pixels in height with bit rates greater than 5 megabits per second ("mbps"), the Phanfare Service will store a version of the video that has been downsampled to approximately 5 mbps and will discard the original video. For all other videos, if the bit rate is greater than 4 megabits per second, the Phanfare Service will store a version of the video that has been down sampled to approximately 3 mbps and will discard the original video. For the basic Phanfare level of service, videos are converted to VGA quality and higher resolution versions are not retained.

Your Conduct. You agree to abide by all standards and applicable local, state, national and international laws and regulations in your use of the Phanfare Service, and you agree not to interfere with the use and enjoyment of the Phanfare Service by other users. You agree to be solely responsible for your actions and the contents of your entries through the Phanfare Service. You agree not to impersonate any person or entity, or falsely state or otherwise misrepresent your affiliation with a person or entity. In addition, you represent, warrant and agree that no materials of any kind submitted through your account or otherwise posted, transmitted, or shared by you on or through the Phanfare Service will violate or infringe upon the rights of any third party, including copyright, trademark, privacy, publicity or other personal or proprietary rights; or contain libelous, defamatory or otherwise unlawful material. You must be at least 13 years of age to use the Carbonite Products, including the Phanfare Service. You agree: (1) to comply with all laws regarding the transmission of technical data exported from the United States through the Phanfare Service; (2) to comply with all regulations, policies and procedures of networks connected to the Phanfare Service;
In addition, you agree not to use the Phanfare Service or the Phanfare Service Website to:

  • If you are under the age of 13, you may not post or submit any personally identifiable information about yourself on the Website;
  • upload or distribute in any way files that contain viruses, corrupted files, or any other similar software or programs that may damage the operation of another's computer;
  • use the Phanfare Service for illegal purposes;
  • interfere or disrupt networks connected to the Phanfare Service;
  • use the Phanfare Service Website or the Phanfare Service for chain letters, junk mail, “spamming” solicitations (commercial or otherwise) or bulk communications of any kind;
  • promote an illegal or unauthorized copy of another person's copyrighted work, such as providing pirated computer programs or links to them, providing information to circumvent manufacture-installed copy-protect devices, or providing pirated music or links to pirated music files;
  • use automated scripts to collect information from or otherwise interact with the Phanfare Service or the Phanfare Service Website;
  • transmit or post any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable local, state, national or international law or regulation;
  • upload content in violation of law, or falsely state or otherwise misrepresent yourself, your age or your affiliation with any person or entity;
  • upload, post, transmit, share, store or otherwise make publicly available on the Phanfare Service Website any private information of any third party, including, without limitation, addresses, phone numbers, email addresses, Social Security numbers and credit card numbers;
  • solicit personal information from anyone under 18 or solicit passwords or personally identifying information for commercial or unlawful purposes;
  • intimidate or harass another;
  • upload, post, transmit, share, store or otherwise make available content that would constitute, encourage or provide instructions for a criminal offense, violate the rights of any party, or that would otherwise create liability or violate any local, state, national or international law;
  • use or attempt to use another's account, service or system without authorization from the Company, or create a false identity on the Phanfare Service or the Phanfare Website; or
  • upload, post, transmit, share, store or otherwise make available content that, in the sole judgment of Carbonite, is objectionable or which restricts or inhibits any other person from using or enjoying the Phanfare Website, or which may expose Carbonite or its users to any harm or liability of any type.

Carbonite may, at its sole discretion, immediately terminate your access to the Phanfare Service should your conduct fail to conform to these terms and conditions.

Enhancements and Feedback

Enhancements. Carbonite may (i) automatically update the Carbonite Products installed on your computer without your prior notice, (ii) upgrade, enhance, change and modify (collectively, the "Enhancements") the Carbonite Products, or (iii) discontinue or retire the Carbonite Products or any aspect or feature of the Carbonite Products, including the types of files and data that are backed-up (not every file on your computer is backed-up) or the availability of Carbonite Products on any particular device or communications service at any time and from time-to-time in its sole discretion. Any Enhancements made available to you will be subject to these Terms. Carbonite will use reasonable efforts to provide notice of material changes to the Carbonite Products or changes to these Terms by emailing you at the address provided in your registration and by posting them to www.phanfare.com/corp/tos.aspx. It is your responsibility to periodically check the Phanfare Service Website to inform yourself of any such modifications. Changes to these Terms, which may be made in Carbonite's sole and exclusive discretion, will be effective upon acceptance of these Terms (as described herein) for new subscriptions and effective for all existing users thirty (30) calendar days after the posting of the new Terms on the Phanfare Service’s Website at www.phanfare.com/corp/tos.aspx. You agree to be bound to these Terms, as modified. If you do not agree to the modified Terms you are not permitted to use the Carbonite Products and must terminate your subscription immediately.

Feedback. You may provide feedback to Carbonite with respect to the Carbonite Products. Carbonite may use feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the feedback, you hereby grant Carbonite an irrevocable, non-exclusive, perpetual, royalty free license to use the feedback in connection with Carbonite's business, including enhancement of the Carbonite Products.

Term

Term and Termination. These Terms and your license to the Carbonite Products will commence at the time and on the day you click the "I AGREE" button or install, access, or use the Carbonite Products, whichever is earlier. These Terms, your license and your subscription to the Carbonite Products will automatically terminate or expire upon the earlier of (i) non-renewal, cancellation, or expiration of your subscription or your failure to pay invoices when due, (ii) Carbonite's discontinuance of the Carbonite Products, or (iii) failure to comply with these Terms. If any third party makes an intellectual property infringement claim relating to the Carbonite Products, Carbonite reserves the right to immediately terminate your subscription to the affected Carbonite Products. CARBONITE MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE CARBONITE PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH CARBONITE IF YOU ARE USING THE CARBONITE PRODUCTS IN A MANNER NOT INTENDED OR IN VIOLATION OF LAW.

Effect of Non-Renewal or Termination. Upon any non-renewal, termination, or expiration of your subscription to the Carbonite Products (i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the Carbonite Products, (ii) the Carbonite Products may be disabled by Carbonite without notice to you, and (iii) you will no longer have the right to access or retrieve your photos and videos. You acknowledge and agree that Carbonite's policy regarding the Phanfare service is to automatically delete all of your photos and videos upon non-renewal, termination, or expiration of your subscription to the Carbonite Products and that it is solely your responsibility to keep your account in good standing to avoid deletion of our photos and videos from Carbonite’s servers

Disclaimer of Warranties; Indemnification; Limitation of Liability

Carbonite Products. THE CARBONITE PRODUCTS MAY CONTAIN OR CARBONITE MAY PROVIDE TO YOU THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING, OR YOU MAY OBTAIN THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING FROM THIRD PARTIES DIRECTLY, ("THIRD PARTY COMPONENTS"). THE CARBONITE PRODUCTS, ALL THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE ARE PROVIDED "AS IS," "WHERE IS," "AS AVAILABLE," "WITH ALL FAULTS" AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. CARBONITE AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE CARBONITE PRODUCTS, THE THIRD PARTY PRODUCTS AND ALL BETA SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE CARBONITE PRODUCTS. CARBONITE DOES NOT WARRANT THAT THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHIMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT YOUR INSTALLATION, USE AND ACCESS OF THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF BACKED-UP DATA THAT RESULTS FROM THE USE THEREOF. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY CARBONITE SHALL CREATE ANY ADDITIONAL CARBONITE WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF CARBONITE'S OBLIGATIONS HEREUNDER. YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST CARBONITE AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS AND BETA SOFTWARE. THE CARBONITE PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT CARBONITE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEB SITES, COMPUTERS, OR NETWORKS. CARBONITE SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

Beta Applications. Carbonite may designate certain Enhancements and new releases of the Carbonite Products as "Beta Software." Beta Software is not ready and is not intended for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. You acknowledge and agree that (i) the Beta Software is experimental in nature and has not been fully tested, (ii) the Beta Software may not meet your requirements or perform as intended, (iii) use of the Beta Software may not be uninterrupted, error free, or free of faults, (iv) your use of the Beta Software is for the sole purpose of evaluating and testing the product and providing feedback to Carbonite, and (v) you shall inform your employees, staff members and other users regarding the nature of the Beta Software. Your use of the Beta Software is and shall be subject to these Terms.

Indemnification; Limitation of Liability. YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR CONDUCT, YOUR DATA, AND YOUR BACKED-UP DATA RELATED TO THE CARBONITE PRODUCTS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD CARBONITE, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUPPLIERS AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, DAMAGE, LIABILITY AND EXPENSE (INCLUDING ATTORNEYS' FEES, EXPERT FEES AND OUT-OF-POCKET EXPENSES) ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH YOUR BREACH OF THESE TERMS, YOUR USE OF THE CARBONITE PRODUCTS, OR YOUR BACKED-UP DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL CARBONITE OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA, BUSINESS INTERRUPTION, OR LOST REVENUES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE CARBONITE PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE, OR YOUR USE OF DATA OR FILES STORED THEREIN, EVEN IF CARBONITE HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE)). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF CARBONITE AND ITS AFFILIATES, SUPPLIERS AND LICENSORS FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE LICENSE FEES PAID BY YOU TO CARBONITE IN THE TWELVE (12) CALENDAR MONTHS PRIOR TO THE DAMAGES ARISING. IF THE CARBONITE PRODUCTS ARE PROVIDED TO YOU WITHOUT CHARGE, THEN CARBONITE SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE CARBONITE PRODUCTS. Some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to you.

Governing Law and Arbitration

These Terms shall be governed, construed and enforced in accordance with the laws of the Commonwealth of Massachusetts without reference to conflicts of law principles. The parties agree that the exclusive jurisdiction of any actions arising out of, relating to, or in any way connected with these Terms, shall be in the state or federal courts, as applicable, located in the City of Boston or the County of Suffolk, Massachusetts.

Any dispute, controversy, or claim arising out of or relating to this Agreement, including the arbitrability of the matter or the formation, interpretation, scope, applicability, termination, or breach thereof, shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed "international" within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Boston, Massachusetts. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgment upon the arbitral award may be entered by any court having jurisdiction. This section shall apply to and require arbitration of all disputes, controversies and claims, regardless of whether such disputes, controversies, or claims concern a single individual, entity, or other person, multiple individuals, entities, or other persons, or classes of individuals, entities, or other persons.

Additional Terms

Privacy and Security. See Carbonite's Privacy Policy and Security Policy, which you can access by navigating the links above or by clicking Privacy Policy and Security Policy, for information and notices concerning Carbonite's collection, use and security of your personal information.

Export. You shall not export, directly or indirectly, the Carbonite Products to any country for which the United States requires an export license or other governmental approval. You shall not use the Carbonite Products to store, backup, or distribute child pornography or other illegal files or data. You shall defend, indemnify and hold Carbonite harmless from and against any and all damages, fines, penalties, assessments, liabilities, costs and expenses (including attorneys' fees, expert fees and out-of-pocket expenses) arising out of any claim that you are storing child pornography or other illegal files or data, or that the Carbonite Product was exported or otherwise shipped or transported by you in violation of applicable laws, rules and regulations.

Government Use. For the avoidance of doubt, the Carbonite Products constitute commercial computer software as that term is described in 48 C.F.R. 252.227-7014(a)(1). If acquired by or on behalf of a civilian agency, the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to these Terms as specified in 48 C.F.R. 12.212 (Computer Software) and 12.211 (Technical Data) of the Federal Acquisition Regulations ("FAR") and its successors. If acquired by or on behalf of any agency within the Department of Defense ("DOD"), the U.S. Government acquires this commercial computer software and/or commercial computer software documentation subject to these Terms as specified in 48 C.F.R. 227.7202-3 of the DOD FAR Supplement ("DFARS") and its successors.

Use Outside of the United States. If you are using the Carbonite Products outside of the United States, please navigate to the Frequently Asked Questions (FAQs), for country-specific information that applies to your use of the Carbonite Products.

General. These Terms, which incorporate the Privacy Policy and Pricing Policy, each of which you can access by clicking on these links or navigating the tabs above, constitute the entire understanding of the parties and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter hereof. In particular, if you are a current licensee of Carbonite Products, these Terms shall supersede your existing license agreement and that agreement shall be of no further force or effect. Any rule of construction to the effect that ambiguities are to be resolved against the drafting party will not be applied in the construction or interpretation of these Terms. As used in these Terms, the words "include" and "including," and variations thereof, will not be deemed to be terms of limitation, but rather will be deemed to be followed by the words "without limitation." If one or more of the provisions herein shall be held invalid, illegal, or unenforceable in any respect, the validity, legality and enforcement of the remaining provisions shall not be affected or impaired. The failure to enforce or the waiver by either party of a default or breach of the other party shall not be considered to be a waiver of any subsequent default or breach. If you or Carbonite cannot perform its obligations under these Terms because of any act of God, accident, strike, court order, fire, riot, war, failure of third party equipment, or any other cause not within the affected party's reasonable control and that could not be avoided through the exercise of reasonable care and diligence (a "Force Majeure Event"), then the non-performing party will: (i) promptly notify the other party; (ii) take reasonable steps to resume performance as soon as possible; and (iii) not be considered in breach during the duration of the Force Majeure Event. If a Force Majeure Event continues for five (5) or more business days, Carbonite may terminate your subscription to the Carbonite Products and these Terms by providing written notice to you. IT IS EXPRESSLY UNDERSTOOD AND AGREED THAT IN THE EVENT ANY REMEDY HEREUNDER IS DETERMINED TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, ALL LIMITATIONS OF LIABILITY AND EXCLUSIONS OF DAMAGES SET FORTH HEREIN SHALL REMAIN IN FULL FORCE AND EFFECT. The following provisions shall survive termination or expiration of this Agreement: Account Access and Ownership; Effect of Non-Renewal or Termination; Disclaimer of Warranties; Indemnification; Limitation of Liability; Governing Law and Arbitration; and Additional Terms. Any inconsistency between these Terms in English and these terms in any other language shall, to the fullest extent permitted by applicable law, be resolved by reference to the English version.