USERS. We have designed our Services to meet the needs of various types of Subscribers; certain Services are designed solely for individual use, while others are designed for commercial use, as determined by us and explained on the Site. Please use the appropriate Service.
- Subscribers. To start your backup process and Subscription, you may either: (i) provide your email address and select a password; or (ii) authenticate yourself through a Backedup Site (defined below) and obtain a Token (defined below). We will refer to your email address and password or your Token as your “Credentials”. You may not transfer or share your log-in information with any third parties, and you are solely responsible for maintaining the confidentiality of such log-in information. You acknowledge and agree that we rely on Credentials to know whether users accessing the Site and using our Services are authorized to do so. If someone accesses our Site or Services using your Credentials, we will rely on the Credentials and will assume that it is really you who is accessing the Site and Services. You are solely responsible for any and all use of your Credentials and Subscription and all activities that occur under or in connection with your Credentials or Subscription. You agree to be responsible for any act or omission of any users that access the Site or Services under your Credentials. You promise that all information you provide to us is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
- Business Subscribers. A Subscriber may be an individual or a legal or governmental entity (e.g., corporate, limited liability company, government agency). If an individual or legal entity accesses the Services for a commercial purpose or on behalf of legal or governmental entity, you are a “Business Subscriber”. If you access the Services for the benefit of a Business Subscriber, as an employee, contractor or agent, you are a “Business Subscriber User”. Each Business Subscriber User must be provided his or her own Credentials by the Business Subscriber. As between a Business Subscriber and a Business Subscriber User, the Business Subscriber will be the owner of the Backedup Data (as defined below). If you are a Business Subscriber User, you further acknowledge and agree that the Business Subscriber may select one or more administrators to control, manage and use the Services on its behalf, and the administrators may grant (or may grant to other Business Subscriber Users) certain privileges such as access to and control of the Backedup Data, for which you may bear responsibility. Each Business Subscriber is responsible for the acts and omissions of its Business Subscriber Users. Subscribers, Business Subscriber Users and Visitors may be referred to collectively as “Users”.
- Availability. Your Backedup Data may not be available or restorable if: (a) we have not completed copying your selected files or changed files and (b) you change your password on a Backedup Site or otherwise restrict our access to such site; or (c) you Subscription expires or terminates. You represent and warrant that your Backedup Data will comply with the terms and conditions of the Backedup Site on which it is located, and you agree that we may disclose such Backedup Data to the Backedup Site to the extent required by the terms under which we are granted access to that Backedup Site.
- Access. We will take reasonable efforts to restrict access to the Backedup Data to Subscribers using their applicable Credentials. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge that Site and the Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
FEES. As a Subscriber, you agree to pay our then-current and applicable subscription fees (as listed on the Site) for the Services, based on the level of Services for which you sign up. Your use of the Services are limited to the restrictions established in your applicable plan (e.g., limitations on storage amounts or the number of accounts). If you are a Business Subscriber User, your business or organization may pay fees on your behalf. Backupify charges and collects in advance for use of certain Services. Unless you designate in your Subscription preferences or notify us that you do not want your subscription to be auto-renewed, you agree that we may automatically renew your Subscription to the Services and automatically charge you the then-current renewal fees for such renewed subscription using the credit card associated with your subscription at the beginning of each recurring period.
- Non-Payment. You further agree that we may suspend your access to any Services if, at any time, you have not paid all fees that you owe to us. In the event we are unable to collect the fees you owe us, we may take any other steps we deem necessary to collect such fees from you, and that you will be responsible for all costs and expenses incurred by us in connection with such collection activity, including collection fees, court costs and attorneys’ fees. Any amounts not paid when due shall bear interest at the rate of one and one half percent (1.5%) per month, or the maximum legal rate, if less.
- Refunds. In the event of termination of a Service, we may provide you with a refund of any pre-paid, but unused fees related to such Service, effective at the beginning of the next month of your Service. No refund shall be paid for the current month’s services, regardless of the day on which you cancel the Services. We will issue the refund within 60 days of when your cancellation request is processed. You will not be entitled to any refund for our termination of the Services based upon your breach. If you purchased access to the Service at a discounted price, any refund will lose the benefit of that discount. For example, if you paid $100.00 for a one-year subscription, and the monthly subscription price was $10.00 at the time of such purchase, we would assume that you were on the month-to-month subscription for the purpose of your refund. Thus, if you cancelled during the sixth (6th) month of the year for which you prepaid, we would grant you a refund of $40.00, or $100.00 – (6 * $10.00).
- Promotions. We may run promotional offers from time to time on the Site. The terms of any such promotion will be posted on the Site. Unless otherwise indicated, we may establish and modify, in our sole discretion, the terms of such offer and end such offer at any point.
RESTRICTIONS. You represent and warrant that neither your Backedup Data nor any Content you post will:
- Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
- Violate the privacy, publicity, or other rights of third parties;
- Violate any other law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising;
- Be false or inaccurate or becomes false or inaccurate at any time;
- Be or contain material that is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
- Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
- Misrepresent your identity in any way;
- Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
- Contain any advertising or solicitation for anything other than your Listing or service on the Site;
- Advocate or encourage any illegal activity; or
- Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
General Rules of User Conduct. It is our goal to make access to our Site and Services a good experience for Visitors and all of our Subscribers. You agree not to, and represent and warrant that you will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
- Conduct or promote any illegal activities while using the Site or Services;
- Upload, distribute or print anything that may be harmful to minors;
- Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
- Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
- Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
- Use the Site or Services to generate unsolicited email advertisements or spam;
- Use the Site or Services to stalk, harass or harm another individual;
- Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
- Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
- Use any robot, spider, other automatic device, or manual process to extract, “screen scrape,” monitor, “mine,” or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
- Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
- Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
LIMITATION OF LIABILITY. YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE SITE, THE SERVICES OR YOUR BACKEDUP DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE SITE OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE SITE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE; OR (II) TEN DOLLARS (U.S. $10.00). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances WILL WE or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.
COPYRIGHT VIOLATIONS. We respect the intellectual property of others, and we ask you to do the same. If you believe that your work has been copied in a way that constitutes copyright infringement, please provide our Copyright Agent the following information:
- an electronic or physical signature of the person authorized to act on behalf of the owner of the copyright interest;
- a description of the copyrighted work that you claim has been infringed;
- a description of where the material that you claim is infringing is located on the Site or Services;
- your address, telephone number, and email address;
- a statement by you that you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; and
- a statement by you, made under penalty of perjury, that the above information in your notice is accurate and that you are the copyright owner or authorized to act on the copyright owner’s behalf.
Our copyright agent for notice of claims of copyright infringement on the Site or the Services can be reached by directing an e-mail to Copyright Agent at email@example.com, by calling 1-800-571-4984 or by writing to: Backupify, LLC, 486 Green St, Cambridge, MA 02139, Attn: Copyright Agent.
- You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and Backupify must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and Backupify, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR BACKUPIFY MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, Backupify will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) Backupify also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or Backupify shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/Backupify customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
- With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor Backupify shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event AAA refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and Backupify shall be exclusively brought in the state or federal courts specified in subsection “(d)” above.
- For more information on AAA, its Rules and Procedures, and how to file an arbitration claim, you may call AAA at 800-778-7879 or visit the AAA website at http://www.adr.org.