Terms of Service

  1. The Services.
    1. Access and Availability . Druva will use commercially reasonable efforts to make its cloud services identified in the Order Form (“ Services ”) available during the Subscription Term (as defined below) in accordance with the service levels attached as Exhibit A to (a) Customer and (b) the individuals who are authorized by Customer to use the Services on behalf of the Customer and who have been supplied user identification and passwords by Customer (or by Druva at Customer’s request) (“ Authorized Users ”).

      Subject to compliance with the terms of this Agreement, Druva hereby grants Customer a limited, non-exclusive right to (i) access and use one instance per User of the Services, and (ii) install one copy of the Druva client software agent (the “ Client Software ”) on each Authorized User’s device, in each case during the Subscription Term and in accordance with this Agreement. The foregoing rights are limited to the number of authorized devices and storage limit set forth in the Order Form.

    2. Subscription Term. This Agreement will be in effect for the term specified in the Order Form (the “ Initial Subscription Term ”), and will only renew for successive one (1) year periods (each, a “ Renewal Term ”) at then-applicable subscription fees if Customer gives an approval to renew.. The Initial Subscription Term plus all Renewal Terms are referred to herein as the “ Subscription Term ”.
    3. Number of Authorized Devices/Users. Druva and its subcontractors will have the right to monitor or audit remotely the number of devices that use the Services. Unless otherwise agreed upon by Druva, if Customer exceeds the number of devices set forth in the Order Form, Druva will have the right to charge Customer the then-current subscription fees for such overage.
  2. Customer Conduct and Use.
    1. Customer Data
      1. Customer will retain all right, title and interest in and to all data uploaded by Customer and its Authorized Users via the Services (“ Customer Data ”). Customer hereby grants Druva a limited license to access and use Customer Data during the Subscription Term for the sole purpose of (i) providing the Services to Customer, (ii) assessing whether the Services are being properly implemented and configured, and (iii) monitoring compliance with, and enforcing, this Agreement.
      2. Customer is solely responsible for the content of Customer Data and its use of the Services to store and retrieve Customer Data. Customer must ensure that it has all the necessary rights in Customer Data to permit the activities provided for under this Agreement.
    2. Compliance . Customer is responsible for (i) maintaining the confidentiality of any user ID and password associated with the Customer account, (ii)

      all activities that occur with respect to the Customer account, (iii) its and its Authorized Users’ use of the Services and compliance with this Agreement, and (iv) all Customer Data.

    3. Certain Restrictions. Customer and its Authorized Users will use the Services and the Client Software solely for the purpose of storing and retrieving Customer Data. Without limiting the foregoing, Customer or its Authorized Users must not:
      • tamper with or breach the security of the Services or Druva’s other customer accounts;
      • lease, distribute, sublicense, sell or otherwise commercially exploit the Services or the Client Software, use the Services or the Client Software for timesharing or service bureau purposes or otherwise for the benefit of a third party, or to operate Customer’s or the Authorized User’s own file storage service;
      • reverse engineer, decompile, disassemble, or seek to obtain the source code of the Services or the Client Software, or modify or create a derivative work of the Services, the Client Software or any related documentation;
      • remove or obscure any product identification, proprietary, copyright or other notices contained in the Services, the Client Software or any related documentation; or
      • upload any Customer Data that (a) infringes the intellectual property rights or other proprietary rights of any third party or is otherwise unlawful, or (b) contains any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
    4. Hazardous Use. Customer acknowledges that the Services are not designed, intended or authorized for use in hazardous circumstances or for uses requiring fail-safe performance such as the operation of nuclear facilities, aircraft navigation, air traffic control systems, or where failure could lead to personal injury or environmental damage. Customer will not use the Services for any such purposes or under such circumstances.
    5. Suspension. In the event of any breach or threatened breach of this Agreement by Customer or any Users (including non-payment of fees), without limiting Druva’s other rights and remedies, Druva may immediately suspend Customer’s access to the Services.
  3. Security.
    1. Druva shall use commercially reasonable efforts to prevent the unauthorized access, use or disclosure of Customer Data located on Druva’s servers, including through the implementation of industry-standard measures designed to maintain the security of such data.
    2. Druva shall implement and maintain commercially reasonable procedures to segregate Customer Data from data belonging to Druva’s other customers.
    3. Druva shall establish and maintain commercially reasonable environmental, safety and facility procedures, data security procedures and other safeguards against the unauthorized access, destruction, corruption, loss or alteration of the Service and any Customer Data.
    4. Druva shall use commercially reasonable efforts to promptly notify Customer of any material breach of security with respect to any Customer Data.
  4. Confidentiality
    1. Scope.Confidential Information ” means all information of a party (” Disclosing Party “) disclosed to the other party (” Receiving Party “) that is designated in writing or identified as confidential at the time of disclosure or should be reasonably known by the Receiving Party to be confidential due to the nature of the information disclosed and the circumstances surrounding the disclosure. Without limiting the foregoing, Druva’s Confidential Information shall include the Client Software.
    2. Restrictions. The Receiving Party will: (i) not use the Disclosing Party’s Confidential Information for any purpose outside of this Agreement; (ii) not disclose such Confidential Information to any person or entity, other than its (a) employees who have a “need to know” for the Receiving Party to exercise its rights or perform its obligations hereunder and (b) professional advisers, and actual or prospective investors, provided that such employees, investors, acquirers and professional advisers are bound by agreements or, in the case of professional advisers, ethical duties respecting such Confidential Information in accordance with the terms of this Section 4; and (iii) use reasonable measures to protect the confidentiality of such Confidential Information.
    3. Exceptions. If the Receiving Party is required by applicable law or court order to make any disclosure of such Confidential Information, it will first give written notice of such requirement to the Disclosing Party, and permit the Disclosing Party to intervene in any relevant proceedings to protect its interests in its Confidential Information, and provide full cooperation to the Disclosing Party in seeking to obtain such protection. Further, this Section 4 will not apply to information which the Receiving Party can document: (i) was rightfully in its possession or known to it prior to receipt; (ii) is or has become public knowledge or publicly available through no fault of the Receiving Party; (iii) is rightfully obtained by the Receiving Party from a third party without breach of any confidentiality obligation; or (iv) is independently developed by employees of the Receiving Party who had no access to such information.
    4. Equitable Relief. The Receiving Party acknowledges that unauthorized disclosure of Confidential Information could cause substantial harm to the Disclosing Party for which damages alone might not be a sufficient remedy and, therefore, that upon any such disclosure by the Receiving Party the Disclosing Party will be entitled to appropriate equitable relief in addition to whatever other remedies it might have at law or equity.
    5. Data Collection. Notwithstanding the above, Druva may collect data with respect to Customer’s use of the Services such as storage and user limits, and use any such data for its internal business purposes .
  5. Fees; Interest; Taxes. Customer will pay to Druva all of the fees specified in the Order Form, including the applicable subscription fees set forth therein, in United States currency (collectively, “ Subscription Fees ”). Subscription Fees are based on the subscription purchased and not on actual usage. All payment obligations are non-cancellable, and all amounts paid to Druva are non-refundable. All fees will be invoiced in advance in accordance with the terms of the Order Form, and are due within thirty (30) days from the invoice date. Unpaid invoices are subject to a late payment charge of 1.5% per month on any outstanding balance or the maximum permitted by law, whichever is lower. All amounts payable hereunder are exclusive of any sales, use and other taxes or duties, however designated (collectively “ Taxes ”). Customer will be solely responsible for payment of all Taxes, except for those taxes based on the income of Druva.
  6. Proprietary Rights .
    1. Druva retains all right, title and interest in and to the Services, and related support, documentation and professional services deliverables, and all related and underlying software (including the Client Software), interfaces, databases, data models, structures, aggregated statistical data, technology, reports and other intellectual property, and all intellectual and other proprietary rights therein or thereto (the foregoing, collectively, the “ Druva IP ”). Except for the limited right granted to Customer to use the Services under this Agreement, Customer has no right, title or interest in or to the Druva IP.
    2. Customer retains all right, title and interest in and to the Customer Data.
  7. Export Restrictions; U.S. Government Rights . The Services are offered in the United States and Druva may restrict access from locations outside the United States. Customer agrees to comply with all export and re-export restrictions and regulations and to not transfer, or encourage, assist, or authorize the transfer of to a prohibited country, or otherwise in violation of any applicable restrictions or regulations. If Customer is a U.S. Government end user, the Services are licensed under this Agreement as a “Commercial Item” as such term is defined in the U.S. Code of Federal Regulations (48 C.F.R. § 2.101).
  8. Term and Termination.
    1. Term and Termination. This Agreement will be effective during the Subscription Term, unless earlier terminated as follows. Unless otherwise stated in the Order Form, this Agreement may only be terminated: (i) by a party upon written notice to the other party (A) if the other party breaches a material term of this Agreement that is uncured within thirty (30) days (or, in the case of non-payment, fifteen (15) days) after receipt of notice of such breach; (B) if the other party becomes the subject of a petition in bankruptcy or any other proceeding relating to insolvency, receivership, liquidation or assignment for the benefit of creditors not dismissed within thirty (30) days. Notwithstanding the above, Druva may immediately terminate this Agreement in the event of breach of Section 2.
    2. Outstanding Fees. Customer will pay all fees owed to Druva that have accrued up until termination of this Agreement immediately upon such termination. In addition, if Druva terminates this Agreement for breach by Customer, Customer will pay Druva any unpaid amounts that would have been owed to Druva for the remainder of the then-current Subscription Term absent early termination, without limiting Druva’s other rights and remedies.
    3. Effect of Expiration/Termination. Upon expiration or termination of this Agreement, Customer will immediately cease all use of and access to the Services and delete (or, at Druva’s request, return) all related documentation, passwords, Client Software and any other Druva Confidential Information in its possession. Upon expiration or termination of this Agreement (other than termination by Druva for breach), at the Customer’s written request made within thirty (30) days after expiration, Druva will provide Customer with temporary access to the Services solely for Customer to retrieve its Customer Data (but not any other purpose) and/or provide, at its standard export fee, a copy of the Customer Data on a portable storage device. After such 30-day period, Druva will have no obligation to maintain or provide access to such Customer Data and will thereafter, unless legally prohibited and except for archival backup purposes, have the right to delete all such Customer Data in its possession or control.
    4. Survival . The following Sections will survive any termination or expiration of this Agreement: 2, 4, 6, 7, 8(b) through (c), 9 through 12.
  9. Warranties.
    1. Corporate Authority. Each party represents and warrants that it has the legal power and authority to enter into this Agreement, and that the Order Form is executed by an employee or agent of such party with all necessary authority to bind such party to the terms and conditions of this Agreement.
    2. Functionality Warranty . Druva warrants that the Services will operate in substantial conformity with the then current version of the applicable published documentation provided by Druva. In case of breach of such warranty, Druva’s sole liability and Customer’s sole remedy will be for Druva to remedy the functionality at issue.
    3. Disclaimer . EXCEPT FOR THE WARRANTIES CONTAINED IN SECTIONS 9(a) AND 9(b), (I) THE SERVICES, CLIENT SOFTWARE AND ALL OTHER DRUVA PRODUCTS AND SERVICES ARE PROVIDED “AS IS”, AND (II) Druva, ON BEHALF OF ITSELF AND ITS LICENSORS, SPECIFICALLY disclaims ANY AND ALL warranties AND CONDITIONS, whether express, implied, STATUTORY OR otherwise, INCLUDING implied warranties OR CONDITIONS of merchantability, TITLE, NON-INFRINGEMENT AND fitness for any purpose, IN EACH CASE to the maximum extent permitted by law.
  11. Mutual Indemnification.
    1. Druva Indemnification. Druva will indemnify, defend and hold harmless Customer against any damages awarded by a court incurred in connection with claims, demands, suits or proceedings made or brought by a third party (“ Claims ”) against Customer alleging that the use of the Services, as contemplated hereunder, infringes any valid patent, copyright or trademark of a third party in the United States. Notwithstanding the foregoing, if Druva reasonably believes that the Customer’s use of any portion of the Services is likely to be enjoined by reason of a Claim of infringement, violation or misappropriation of any third party intellectual property rights then Druva may, at its expense and in its sole discretion: (i) procure for the Customer the right to continue using the Services; (ii) replace the same with other non-infringing software, services or other material of substantially equivalent functions; or (iii) modify the applicable software, services or other material so that there is no longer any infringement, violation or misappropriation, provided that such modification does not adversely affect the functional capabilities of the Services. If, in Druva’s opinion, the remedies in clauses (i), (ii), and (iii) above are infeasible or commercially impracticable, Druva may, in its sole discretion, terminate this Agreement and refund Customer a prorated amount equal to the pre-paid Subscription Fees covering the whole months that would have remained, absent such early termination, in Customer’s Subscription Term following the effective date of such early termination. The foregoing indemnification obligation of Druva will not apply: (1) if the Services are modified by any party other than Druva, to the extent the alleged infringement is caused by such modification; (2) if the Services are combined with other non-Druva products, applications, or processes not authorized by Druva, to the extent the alleged infringement is caused by such combination; (3) to Claims arising out of any unauthorized use of the Services; (4) to Claims arising out of any third party deliverables or components contained within the Services that are not provided by Druva; or (5) to Claims arising out of Customer Data. THIS SECTION 11(a) SETS FORTH Druva’s SOLE LIABILITY AND CUSTOMER’S SOLE AND EXCLUSIVE REMEDY WITH RESPECT TO ANY CLAIM OF INTELLECTUAL PROPERTY INFRINGEMENT OR MISAPPROPRIATION.
    2. Customer Indemnification. Customer will indemnify, defend and hold Druva and its affiliates, and their officers, directors, employees, agents and contractors, harmless from and against any damages and losses incurred in connection with Claims arising from or relating to Customer’s use of Customer Data or other use of the Services, in each case except to the extent Druva is obligated to indemnify Customer under Section 11(a).
    3. Procedure . Each party’s indemnity obligations are subject to the following: (i) the aggrieved party will promptly notify the indemnifier in writing of the applicable Claim; (ii) the indemnifier will have sole control of the defense and all related settlement negotiations with respect to the Claim (provided that the indemnifier may not settle or defend any Claim unless it unconditionally releases the aggrieved party of all liability); and (iii) the aggrieved party will cooperate fully to the extent necessary, and execute all documents necessary for the defense of such Claim.
  12. General Provisions.
    1. Entire Agreement; Interpretation . This Agreement constitutes the entire agreement and sets forth the entire understanding between the parties hereto with respect to Customer’s use of the Services, and supersedes all prior agreements and discussions with respect thereto. Headings contained in this Agreement are inserted for convenience of reference only and will not in any way define or affect the meaning or interpretation of any provision of this Agreement. For purposes hereof, “including” means “including without limitation”.
    2. Marketing. Neither party may issue any press release regarding this Agreement without the other party’s prior consent. Druva may include the name of Customer on its website or other marketing materials for the sole purpose of identifying Customer as a customer of Druva, subject to Customer’s standard guidelines for the use of such name and logo provided to Druva.
    3. Relationship of Customer and Druva. The parties to this Agreement are independent contractors. There is no relationship of partnership, joint venture, employment, franchise or agency created hereby between the parties. Neither party will have the power to bind the other or incur obligations on the other party’s behalf without the other party’s prior written consent.
    4. Modifications and Waiver. No modification of, amendment or addition to this Agreement is valid or binding unless set forth in writing and fully executed by both parties hereto. Any waiver of any right or remedy under this Agreement must be in writing and signed by each party. No delay in exercising any right or remedy will operate as a waiver of such right or remedy or any other right or remedy. A waiver on one occasion will not be construed as a waiver of any right or remedy on any future occasion.
    5. Assignment . This Agreement and any rights or obligations hereunder may not be assigned by either party without the prior written consent of the non-assigning party, except that Druva may assign this Agreement without the consent of Customer in case of merger, acquisition, or sale by Druva of all or substantially all of the assets to which this Agreement relates.
    6. Governing Law; Venue . Any dispute arising out of this Agreement will be governed by the laws of the State of California, USA, without regard to conflicts of laws principles. The parties agree that the provisions of the United Nations Convention on Contracts for the International Sale of Goods do not apply to this Agreement. The parties irrevocably and unconditionally agree to the exclusive jurisdiction of the state and federal courts in Santa Clara County, California, USA. The parties waive any right to jury trial in connection with any action or litigation in any way arising out of or related to this Agreement.
    7. Notices . Any notices under this Agreement will be in writing and sent via certified or registered mail, return receipt requested, or by overnight courier service. Notices to Druva will be sent to the address for Druva set forth in the first page of this Agreement and addressed to the Chief Operating Officer, with a copy to the Chief Executive Officer. Notices to Customer will be sent to the address for Customer set forth in the Order Form and addressed to the Customer’s contact specified therein unless otherwise designated by Customer.
    8. Severability. If any provision of this Agreement is held to be unenforceable or illegal by a court of competent jurisdiction, such provision will be modified to the extent necessary to render it enforceable, or will be severed from this Agreement, and all other provisions of this Agreement will remain in full force and effect.
    9. Facsimile Transmission/Counterparts/Electronic Signatures. This Agreement will be deemed executed upon mutual execution of the Order Form, which may be executed and delivered by facsimile or PDF, and upon receipt such transmission will be deemed delivery of an original, and which may be executed in several counterparts each of which when executed will be deemed to be an original, and such counterparts will each constitute one and the same instrument. The parties consent to electronic signatures for the purpose of executing this Agreement, subject to compliance with any applicable laws, rules or regulations.
    10. Force Majeure. Neither party to this Agreement will be liable to the other for any failure or delay in performance by circumstances beyond its control, including but not limited to, acts of God, fire, labor difficulties, governmental action or terrorism (“ Force Majeure ”), provided that the party seeking to rely on such circumstances gives written notice of such circumstances to the other party hereto and uses reasonable efforts to overcome such circumstances.
    11. Subcontractors . Druva may use the services of subcontractors for the provision of any Services under this Agreement.

Exhibit A

Service Level Agreement (SLA)

Subscription Services Availability
The Subscription Services will be available 24 hours per day, 7 days per week, excluding any scheduled maintenance as described below.

Category 1 – Scheduled Maintenance
A weekly scheduled maintenance period may be scheduled every [______Saturday___] between [_____2AM____] Pacific Time to [____8AM_____] Pacific Time to perform system maintenance, backup, and upgrade functions for the Subscription Services. If scheduled maintenance is required outside of the weekly scheduled maintenance period described above, Druva will notify Customer at least [three business (3) days] in advance.

Category 2 – Unscheduled Maintenance
Unscheduled maintenance may be required to resolve issues that are critical for Customer and/or performance of the Subscription Services. Druva will use best efforts to notify Customer via email at least [six (6) hours] prior to the unscheduled maintenance.

Uptime and Service Credits
Please reference the following table (Reporting Period = [Calendar Month]), which details the credit available to the Customer in the event Subscription Services Availability falls below the indicated thresholds:

Subscription Services Availability


< 99.5% in one Reporting Period

5% of one (1) month of Subscription Fees

< 99% in one Reporting Period

10% of one (1) month of Subscription Fees

[Additionally, if the Subscription Services Availability falls below 95% for [three (3)] consecutive Reporting Periods, Customer shall have the right to terminate the Agreement and such right must be exercised within ten (10) days of the end of such three (3) month period or Customer shall be deemed to have waived its termination right with respect to that particular three (3) month period.]

Calculation of Subscription Services Availability
Subscription Services Availability = (Total Hours in Reporting Period – Unscheduled Maintenance which causes unavailability – Scheduled Maintenance – Excluded*) / (Total Hours in Reporting Period – Scheduled Maintenance – Excluded*) X 100%.

*Excluded means the following: (i) unavailability caused by Force Majeure; (ii) any problems resulting from Customer combining or merging the Subscription Services with any hardware or software not supplied by Druva or not identified by Druva in writing as compatible with the Subscription Services or Systems; (iii) interruptions or delays in providing the service resulting from telecommunications or Internet service provider failures; or (iv) any interruption or unavailability resulting from Customer’s use of the Subscription Services in an unauthorized or unlawful manner or any interruption resulting from the misuse, improper use, alteration, or damage of the Subscription Services.

Request for Credit
Any Customer request for a credit that Customer is entitled to under this SLA may only be made on a calendar monthly basis and must be submitted within ten (10) days after the end of the relevant calendar month or shall be deemed to have been waived by Customer. For those periods at the end of a Subscription Term that do not coincide with the end of a calendar month, Customer must make a claim for a credit within ten (10) days after the expiration of the Subscription Term or the claim for credit shall be deemed to have been waived by Customer. The total of all credits applicable to or accruing in any given Reporting Period shall not exceed [50%] of the Subscription fees paid or payable to Druva by Customer for the Reporting Period.

The right to a credit and/or the right to terminate the Agreement described in this SLA shall be the sole and exclusive remedy available to Customer in the event of unavailability of the Subscription Services and, under no circumstance, shall the unavailability of the Subscription Services be deemed a breach by Druva of its obligations under this Agreement.

All credit requests will be verified against Druva’s system records.

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