Updated August 1, 2024
This Agent Software License Agreement (“License”) governs your use of Kaseya agent software, including all updates, upgrades, utilities, and documentation (collectively, the “Agent Software”). This License is a binding, legal contract between the Kaseya entity from which you purchased the Kaseya product with which you use this Agent Software, which may include certain subsidiaries of Kaseya such as Datto and Unitrends (“Kaseya,” “we” or “us”) and you. Certain Capitalized terms are defined at the end of this License.
The Agent Software is installed on a Machine to be backed up using a Kaseya product and/or service (“Kaseya Product”) which is enrolled in a valid Service Subscription. The purchase and use of Kaseya Products are governed by the Kaseya Master Agreement and any applicable Product Terms of Use available by clicking here, or such other master agreements entered into with Kaseya upon purchase of the Machine and/or the Kaseya Product.
By clicking “I AGREE” below, or by downloading, installing, accessing, or using the Agent Software, or any portion thereof, you are agreeing to, and will be bound by, the terms of this License. If you agree on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to the terms of this License and your agreement will be treated as the agreement of such business or organization. If you agree on behalf of another party, you hereby represent and warrant that you are authorized by that party to do so. If you do not agree to the terms of this License, you may not install, access or use the Agent Software.
Ownership and Limited Rights. The Agent Software, including all Intellectual Property Rights therein, is owned by Kaseya or its licensors and is protected by copyright, patent, trade secret and/or other intellectual property laws. The Agent Software is licensed, not sold. Except for the limited rights granted in this License, Kaseya or its licensors retain all right, title, interest and Intellectual Property Rights in the Agent Software. Any comments or suggestions you provide us regarding the Agent Software or the Kaseya Product in connection with which it is used may be used by us without restriction.
Open Source. If Agent Software contains open source software, those pieces of open source software are licensed under the open source license terms chosen by the provider of the software. Open source license terms may contain additional rights benefiting you, and will take precedence over this License with respect to only the applicable open source software. If the license for open source software requires Kaseya to make the open source software available to you without charge, you may obtain a copy of the relevant software by sending a request to Kaseya’s legal department at [email protected], or to 701 Brickell Avenue, Miami, FL, 33131.
License Grant. Subject to the terms and conditions of this License, and the receipt by Kaseya of all fees applicable to the Kaseya Product used in conjunction with the Agent Software, Kaseya grants you a limited, revocable, non-sublicenseable, non-transferable, non-exclusive right to install and use the Agent Software in its unaltered object code form on a Machine for the term of the Service Subscription for such Kaseya Product. You may not use the Agent Software apart from a Kaseya Product, or in any manner that exceeds or conflicts with the license units or other limitations applicable to the Service Subscription for the Kaseya Product and in connection with which the Agent Software is used. You agree to immediately notify us of any unauthorized use, copying, or disclosure of the Agent Software of which you become aware, as well as any use of the Agent Software in a manner that is contrary to applicable law, including use of Product in areas where it is not certified for use or that violate export laws.
Restrictions. You may not nor may you permit, facilitate or authorize any third party to: (i) use the Agent Software other than as permitted in this License and the terms applicable to the use of the Kaseya Product; (ii) remove or destroy any copyright notices or other proprietary markings or identifications contained on or in the Agent Software or its documentation; (iii) access or use the Agent Software in any manner that could damage, disable, overburden, or otherwise interfere with or disrupt any Machine, Kaseya portals, the Kaseya Product, any networks or security systems; (iv) reverse engineer, decompile, disassemble, or otherwise attempt to extract the source code from the Agent Software, except to the extent such a restriction is expressly prohibited by applicable law; (v) copy, modify, extract or create derivative works of the Agent Software; (vi) alter, defeat or circumvent any disabling or tracking mechanism which may reside in the Agent Software; (vii) sell, assign, sublicense, rent, timeshare, loan, pledge, lease, or otherwise transfer the Agent Software, or directly or indirectly permit any unauthorized third party to use or copy the Agent Software or Kaseya Product; (viii) conduct, disclose or publicize the results of any form of benchmarking of the Agent Software; (ix) access the Agent Software or any Kaseya Product for any competitive purpose or to develop a competing product; or (x) prevent any user from seeing and having to accept the terms of this License.
Certain Uses Not Supported. Use of the Agent Software is not authorized, will not be supported by us, and any warranties will be void, if the Agent Software is modified in any way or used in a manner for which it is not intended, including but not limited to (i) integrating or combining with software or hardware that is not provided by Kaseya, or otherwise recommended or approved by us; or (ii) use in jurisdictions where the Agent Software is not certified for use, or where use otherwise breaches applicable law.
Machine Data and Interaction. By installing the Agent Software on a Machine you authorize us interact remotely with the Machine and to automatically collect and use data about that Machine, which may include, but is not limited to, MAC address, NetBIOS ID, operating system, configuration and applications (“Machine Data”). Such interaction and Machine Data is used to test, troubleshoot, support or update the Kaseya Product and Machine, or to analyze use, confirm License compliance or modify the environment in which they operate. If you block transmission of Machine Data the Kaseya Product may not operate. We may also analyze Machine Data and use of the Agent Software in an aggregate and anonymous manner to improve our products, develop new products, compile statistical and performance information and other commercial purposes, as further described in the Kaseya Master Agreement and our current Privacy Statement, accessible by clicking here.
Updates. The Agent Software may check periodically for updates, upgrades or other modifications (“Modifications”) and download and install them automatically on the Machine. By accepting this License, you agree to receive such updates without any additional notice. We may make Modifications or discontinue Agent Software in our discretion.
Confidentiality. The Agent Software is the Confidential Information of Kaseya, as defined in the Kaseya Master Agreement and you agree to comply with such provisions regarding the Agent Software. You agree to (a) maintain the Agent Software in strict confidence and not disclose it to any third party without the prior written consent of Kaseya, unless notifying Kaseya is prohibited by applicable law; and (b) protect the Agent Software with the same degree of care that you treat your own Confidential Information of a similar nature, but not less than a reasonable degree of care. You acknowledge that any actual or threatened breach of the restrictions in this License may cause immediate and irreparable harm to Kaseya for which monetary damages would be inadequate and that injunctive relief would be appropriate.
WARRANTY AND LIMITS OF LIABILITY. KASEYA WARRANTS THAT IT HAS THE RIGHT TO GRANT THIS LICENSE TO THE AGENT SOFTWARE AS SET FORTH HEREIN. OTHERWISE, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGENT SOFTWARE IS PROVIDED “AS IS” AND WE DISCLAIM ALL OTHER 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 AND/OR ANY WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE. WE DO NOT WARRANT THAT THE AGENT SOFTWARE WILL MEET ANY SPECIFIC REQUIREMENTS OR THAT ITS OPERATION WILL BE SECURE, UNINTERRUPTED, TIMELY, ERROR-FREE, FREE OF HARMFUL COMPONENTS OR THAT ALL ERRORS WILL BE CORRECTED.
THE USE OF THE AGENT SOFTWARE MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL WE OR OUR LICENSORS BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, 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, ARISING OUT OF THE USE OR INABILITY TO USE THE AGENT SOFTWARE, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS. OUR LIABILITY WITH RESPECT TO THE AGENT SOFTWARE IS LIMITED TO AMOUNTS YOU PAID TO US FOR USE OF THE AGENT SOFTWARE DURING THE SIX (6) MONTHS PRIOR TO THE DATE THAT SUCH LIABILITY FIRST AROSE.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL KASEYA WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
Term and Termination. The term of this License will begin at the earliest to occur of your agreement to this License, or the download or installation of the Agent Software, and will remain in effect throughout the term of the valid Service Subscription applicable to the Kaseya Product in connection with which the Agent Software is used.
If we reasonably believe your use of the Agent Software: (i) violates this License; (ii) may disrupt or threaten the operation or security of any Kaseya Product, network, or system of yours, Kaseya’s, or any third party; or (iii) may otherwise subject us or a third-party to liability or damage, we reserve the right to suspend or terminate this License and to suspend or disable access to the Agent Software. We will use reasonable efforts to contact you prior to taking such action.
Upon termination of this License, you agree to uninstall and/or destroy all copies of the Agent Software. All license restrictions, confidentiality obligations, disclaimers and limitations of liability will survive any termination or expiration of this License.
Indemnification. We agree to defend you from and against (or at our option settle) any third-party claims that the Agent Software in the form supplied to you under this Agreement infringes or misappropriates a third party’s patent or copyright in the United States and we will indemnify and hold you harmless from all damages, costs, and similar liabilities ordered by a court or agreed upon by Kaseya in settlement in connection with any such claim. Our indemnification obligations will not apply to (i) claims of infringement to the extent based on your combination of the Agent Software with other products, services or software; (ii) any modifications to the Agent Software not made by us; (iii) any damages incurred as a result of your failure to use any update to the Agent Software we provide; or (iv) use of the Agent Software in a manner that does not conform to its Specifications; or (these exceptions (i) through (iv) collectively will be referred to as “IP Exclusions”).
If we determine that the Agent Software is or may be subject to an infringement claim, we may, at our option: (i) procure for you the right to continue using the Agent Software in accordance with this License or (2) replace or modify the Agent Software so it becomes non-infringing. If we determine that neither of these options is commercially practicable, we may terminate this License upon written notice to you. This Section represents your sole and exclusive remedy and Kaseya’s sole and exclusive liability for any claims based on Kaseya’s infringement of intellectual property or other proprietary rights.
You agree to indemnify, defend and hold harmless Kaseya, our licensors and affiliates, and the officers, directors, employees and representatives of each of them (each a “Kaseya Indemnified Party”), from and against all damages, costs and similar liabilities incurred as a result of a third-party claim, to the extent the claim arises out of (i) your breach of this License; (ii) your negligence or other acts or omissions; (iii) any of the IP Exclusions referenced above; (iv) your actions in excess of the authority granted to you by any End User; (v) your failure to secure data on a Macine, in a reasonable manner; or (vi) your breach of applicable law involving the Agent Software.
The foregoing indemnification obligations are conditioned on any of the indemnified parties: (i) notifying the indemnifying party promptly in writing of such action; (ii) reasonably cooperating and assisting in such defense; and (iii) giving sole control of the defense and any related settlement negotiations to the indemnifying party with the understanding that the indemnifying party may not settle any claim in a manner that admits guilt or otherwise prejudices the indemnified party, without consent.
Governing Law. This License and any disputes arising from or relating to the Agent Software shall be governed by the laws of the State of Delaware, USA without reference to conflicts of law principles. This License will not be governed by the U.N. Convention on Contracts for the International Sale of Goods. Claims shall be adjudicated exclusively in the state and federal courts located in Miami-Dade County, Florida. You shall have no right to participate in a representative capacity or as a member of any class of claimants pertaining to any claim regarding the Agent Software; all such claims must be brought on an individual basis,. Each party hereby waives all respective rights to a trial by jury regarding claims against one another.
Enforceability. If any provision of this License is deemed illegal or unenforceable, it will be enforced to the maximum extent permissible, and the legality and enforceability of the other provisions of this License will remain in full force and effect. Any waiver or failure to enforce any provision of this License will not constitute a waiver of future enforcement of that or any other provision.
Government Entities. The Agent Software is commercial in nature and is being provided only as a “Commercial Item” as that term is defined in the U.S. Code of Federal Regulations (see 48 C.F.R. § 2.101).
Export Control and other Applicable Laws. In using the Agent Software, you agree that you will comply, and will cause your personnel and agents to comply with all applicable laws and regulations related to your activities under this License. You will respond to our requests for information, to the extent reasonable and related to our efforts to ensure compliance with such applicable laws. You may not export, directly or indirectly, the Agent Software to any country for which the United States or any other country of use requires any export license or other governmental approval without first obtaining such license or approval.
Entire Agreement. This License, including all referenced terms herein, constitute the entire understanding of the parties with respect to the subject matter hereof, and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this License will be binding on Kaseya unless it is in writing and duly authorized Kaseya personnel. Any inconsistent or additional terms contained in any of your purchase orders, sales confirmations or any other communications are deemed material changes which we hereby expressly reject.
Updates to this License. We may update this License (including referenced documents) from time to time. We will notify you of changes by posting the updated License on the appropriate Portal or website, and/or by sending a message to a primary account user for your organization. The updated License will be effective 30 days from our notice. By continuing to use the Agent Software you agree to comply with the updated License.
Definitions.
Kaseya Product – means any Kaseya product, service or other solution, regardless if it involves any hardware provided by Kaseya or if it is provided in virtual or imaged form.
Machine – means a virtual or physical device, including a desktop computer, laptop or server on which the Agent Software operates.
Intellectual Property Rights – means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights recognized in any country of jurisdiction in the world.
Service Subscription – means a subscription to a Kaseya Product as specified on an order that you purchased and for which you are current tin payments, and which gives you the right to use such Kaseya Product..