Backupify Terms of Service

Welcome to backupify.com (the “Site”), a website operated by Backupify, Inc. (“Backupify”, “we”, “us”, or “our”). We provide the Site and a number of related tools and services, including cloud application data backup (collectively, “Services”). The following terms and conditions (the “Terms of Use”) form a binding agreement between you and us regarding the use of our Services. Please review the following terms carefully. Each time you access the Site or use the Services, you are agreeing to be bound by these terms, whether you are a “Visitor” (which means that you simply browse the Site) or you are a “Subscriber” (which means that you have established a subscription on the Site (your “Subscription”)). If you are using the Site or Services as a representative of a company or legal entity, (i) you represent that you have the authority to enter into these Terms of Use on behalf of that company or entity, (ii) you agree that the terms "you" and "your" in these Terms of Use refer to your company or legal entity – and with respect to any terms applicable to Business Subscriber Users (as defined below) to you personally. If you do not agree to all of these terms, we are unwilling to grant you access to the Site or Services, and you must cease access to the Site and Services immediately. In addition, certain areas of the Site or Services may be subject to additional terms of use posted within, adjacent to or linked to from such areas. Any such terms are incorporated into these Terms of Use.

  1. 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.

    1. Visitors. A Visitor may browse the Site in accordance with these Terms of Use, but will not have access to our core Services without first becoming a Subscriber. Basically, only Subscribers can backup with us.
    2. 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).
    3. 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”.
  2. HOW YOU BACKUP. Subject to your compliance with the terms and conditions of this Terms of Use, we will undertake commercially reasonable efforts to save a copy of your data and other files that exist on third-party websites that you designate for backup (your "Backedup Data") to a server operated by Backupify or our agents. Then, on a going forward basis, we will automatically poll their API for changes or additions to the Backedup Data and periodically re-save a copy of a modified file or create a copy of a newly designated file. Before we can backup your data, we will need you to authorize us to act on your behalf to access and interact with the websites from which we will collect Backedup Data, such as social media and web-based email sites (“Backedup Site”) so we can retrieve and store duplicate copies of the Backedup Data. Where reasonably possible, we will not collect your username and password to these Backedup Sites, and we will instead store the unique authorization code provided to us by the Backedup Site (a “Token”) to access such site on your behalf. If the Backedup Site does not provide for a Token in a manner that we can readily use it, we may require that you provide us with your user name and password for the Backedup Site. You can revoke our access to such site(s) at any time by amending the appropriate settings from within your settings on the applicable Backedup Site or by changing your Subscription settings on our Site. You hereby grant us a license to use, reproduce, access, view, modify, reformat, translate and transfer your Backedup Data, solely and to the limited extent necessary to perform our obligations hereunder and provide you the Services. You should note that an Backedup Site may change or amend its guidelines and our access to it at any time, and we cannot guarantee that our Services will always include a connection to such Backedup Site.
  3. BACKEDUP DATA.
    1. 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.
    2. 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.
    3. Review. We do not normally review, inspect, edit or monitor any Backedup Data. However, if we believe that a Subscription is being used for storage and distribution of any illegal material such as copyrighted content, we reserve the right to examine the content of the Backedup Data. We reserve the right to refuse, remove or disable access to any Backedup Data stored on our servers for any reason including that the Backedup Data or its storage is illegal or may violate these Terms of Use.
  4. 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.
    1. Free Trials. If you register on the Site for a free trial, we will make one or more Services available to you on a trial basis free of charge until the earlier of (a) the end of the free trial period for which you registered or are registering to use the applicable Service or (b) the start date of any Services to which you subscribe. All provisions of these Terms of Use except this Section 4 will apply during your free trial, unless otherwise set forth herein, and additional trial terms and conditions may appear on the trial registration web page. Any such additional terms and conditions are incorporated into this Agreement by reference and are legally binding. ANY BACKEDUP DATA SAVED DURING YOUR FREE TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A PAID SUBSCRIPTION TO THE SAME SERVICES AS THOSE COVERED BY THE TRIAL OR EXPORT SUCH DATA BEFORE THE END OF THE TRIAL PERIOD.
    2. 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.
    3. 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).
    4. 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.
  5. OWNERSHIP. You understand and acknowledge that the software, code, proprietary methods and systems used to provide the Site or Services (“Our Technology”) are: (i) copyrighted by us and/or our licensors under United States and international copyright laws; (ii) subject to other intellectual property and proprietary rights and laws; and (iii) owned by us or our licensors. Our Technology may not be copied, modified, reproduced, republished, posted, transmitted, sold, offered for sale, or redistributed in any way without our prior written permission and the prior written permission of our applicable licensors. You must abide by all copyright notices, information, or restrictions contained in or attached to any of Our Technology. Nothing in these Terms of Use grants you any right to receive delivery of a copy of Our Technology or to obtain access to Our Technology except as generally and ordinarily permitted through the Site according to these Terms of Use. Furthermore, nothing in these Terms of Use will be deemed to grant, by implication, estoppel or otherwise, a license to Our Technology. Certain of the names, logos, and other materials displayed on the Site or in the Services constitute trademarks, trade names, service marks or logos (“Marks”) of Backupify or other entities. You are not authorized to use any such Marks. Ownership of all such Marks and the goodwill associated therewith remains with and will inure to us or those other entities. To the extent indicated, any use of third party software provided in connection with the Site or Services will be governed by such third parties’ licenses and not by these Terms of Use. Furthermore, any comments, ideas and/or reports about the Site or Services that you provide to us, whether in written or electronic form (“Feedback”), shall be considered our proprietary and confidential information, and you hereby irrevocably transfer and assign to us all intellectual property rights embodied in or arising in connection with such Feedback, and any other rights or claims that you may have with respect to any such Feedback.
  6. MODIFICATIONS TO THE SERVICES. We may, in our sole discretion, upgrade, enhance, change and modify the Services, including by discontinuing a Service or any aspect or feature thereof, including the manner and extent to which we interact with the Backedup Sites (collectively, “Modifications”). Any Modifications will be subject to these Terms of Use, and we will use reasonable efforts to provide notice of adverse and material changes to the Services or changes to these Terms of Use by posting them on our Site. It is your responsibility to periodically check the Site. Changes to these Terms of Use, which may be made in our sole and exclusive discretion, will be effective upon acceptance of these Terms of Use for new subscriptions and effective for all existing Users thirty (30) calendar days after the posting of the new Terms of Use on the Site. You agree to be bound to these Terms of Use, as modified. If you do not agree to the modified Terms of Use, you are not permitted to use the Services and must terminate your subscription immediately.
  7. Rules Regarding Content. When you access the Site and/or Services, you obtain access to various kinds of information and materials, all of which we call “Content.” We do not consider your Backedup Data as Content, but Content will include information and materials posted to a public area of the Site. You are entirely responsible for each individual item of Content that you post, email or otherwise make available on the Site or the Services. As between you and us, you retain ownership and any intellectual property rights in any copyrighted materials that are contained in Content that you post to the Site or through the Services. You grant us a non-exclusive, royalty-free, fully paid, fully sublicenseable, worldwide license, under any and all of your copyright and other intellectual property rights related to that Content. You agree that any such Content or any derivative works thereof (other than personally identifiable information about you), may be disseminated, distributed, publicly displayed, reproduced, used, sublicensed, posted, or published by us, and searched, displayed, printed or otherwise used or exploited by our customers. You agree not to revise Content posted by others. Though we strive to enforce these rules with all of our Users, you may be exposed through the Site or Services to Content that violates our policies or is otherwise offensive. You access the Site and Services at your own risk. We may, but are not obligated to terminate your Subscription and/or remove Content from the Site if we determine or suspect that a Subscriber or the Subscriber’s Content violates the terms of these Terms of Use or the applicable agreement with the offending User(s). We take no responsibility for your exposure to Content on the Site or through the Services whether it violates our content policies or not.
  8. 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.
  9. 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.
  10. PRIVACY AND SECURITY. We know that your privacy is important. For this reason, we have created a privacy policy [http://www.backupify.com/policies/privacy-policy] that describes our collection, use and disclosure practices regarding any personal information that you provide to us. The security of your personal information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Site and the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
  11. DURATION OF ACCESS. You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, in our sole discretion. We may provide you refunds in our sole discretion, but we are in no event required to provide you a refund pursuant to Section 4(b) if we terminate these Terms of Use for your material breach. Upon termination or expiration of your access to the Services, you will no longer have the right to access or retrieve your Backedup Data through the Site. If you contact us within thirty (30) days of the date of the termination or expiration of a paid Subscription and request a copy of your Backedup Data, we will use commercially reasonable efforts to provide you a copy of your Backedup Data in a format determined by us. Upon expiration of a free trial that is not followed by a paid Subscription, or beginning thirty (30) days after any termination or expiration of your paid Subscription, you acknowledge and agree that we may delete any or all of your Backedup Data. It is solely your responsibility to seek another source for your backup needs. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE SITE OR SERVICES OR DELETION OF YOUR BACKEDUP DATA. TERMINATION OF YOUR SUBSCRIPTION WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF TERMINATION THROUGH YOUR USE OF THE SITE OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO US OR A THIRD PARTY.
  12. Third Party Content and Other Websites. Content from other Users, advertisers, and other third parties may be made available to you through the Site and/or the Services. Because we do not control such Content, you agree that we are not responsible for any such Content. We do not make any guarantees about the accuracy, currency, suitability, or quality of the information in such Content, and we assume no responsibility for unintended, objectionable, inaccurate, misleading, or unlawful Content made available by other Users, advertisers, and other third parties or violation of any third party rights related to such Content. The Site and Services may contain links to websites not operated by us. We are not responsible for the Content, products, materials, or practices (including privacy practices) of such websites. You understand that by using the Site and/or Services you may be exposed to third-party websites that you find offensive, indecent or otherwise objectionable. We make no warranty, representation, endorsement, or guarantee regarding, and accept no responsibility for, the quality, Content, nature or reliability of third party websites, products or Services accessible by hyperlink or otherwise from the Site or Services. We provide these links for your convenience only and we do not control such websites. Our inclusion of links to such websites does not imply any endorsement of the materials on such third party websites or any association with their operators. It is your responsibility to review the privacy policies and terms of use of any other website you visit. You agree that in no event will we be liable to you in connection with any websites, Content, products, materials, or practices of any third party, including other Users.
  13. DISCLAIMER OF WARRANTIES. WE MAY MAINTAIN REGULAR BACKUPS OF DATA TO RECOVER FROM ANY SOFTWARE/HARDWARE FAILURES. WE DO NOT MAKE ANY REPRESENTATIONS OR WARRANTIES ABOUT PROTECTION OF YOUR DATA NOR GUARANTEE DATA AVAILABILITY WHATSOEVER. YOU EXPRESSLY AGREE THAT YOUR USE OF THE SITE AND/OR SERVICES IS AT YOUR SOLE RISK. BOTH THE SITE AND SERVICES ARE PROVIDED BY US ON AN "AS IS" AND "AS AVAILABLE" BASIS. WE EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR PURPOSE, NON-INFRINGEMENT, TITLE, OPERABILITY, CONDITION, QUIET ENJOYMENT, VALUE, ACCURACY OF DATA AND SYSTEM INTEGRATION. WE MAKE NO WARRANTY THAT THE SITE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SITE AND/OR SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DO WE MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SITE OR SERVICES, OR THAT DEFECTS IN THE SITE OR SERVICES WILL BE CORRECTED. YOU UNDERSTAND AND AGREE THAT ANY MATERIAL OR INFORMATION DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE SITE OR SERVICES IS DONE AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SERVICES OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF SUCH MATERIAL AND/OR INFORMATION. NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM US THROUGH THE SITE, SERVICES, OR OTHERWISE WILL CREATE ANY WARRANTY, REPRESENTATION OR GUARANTEE NOT EXPRESSLY STATED IN THESE TERMS OF USE.
  14. 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.
  15. INDEMNIFICATION. You agree to indemnify, defend and hold harmless Backupify, our parents, subsidiaries, affiliates, officers, directors, co-branders and other partners, employees, consultants and agents, from and against any and all third-party claims, liabilities, damages, losses, costs, expenses, fees (including reasonable attorneys' fees and court costs) that such parties may incur as a result of or arising from (i) any of your Content or Backedup Data, (ii) your use of the Site or Services, (iii) your violation of these Terms of Use, (iv) your violation of any rights of any other person or entity, or (v) any viruses, trojan horses, worms, time bombs, cancelbots or other similar harmful or deleterious programming routines input by you into the Site or Services.
  16. 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 info@backupify.com, by calling 1-800-571-4984 or by writing to: Backupify, LLC, 486 Green St, Cambridge, MA 02139, Attn: Copyright Agent.
  17. ELECTRONIC COMMUNICATIONS. We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications (“Communications”) that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may also receive a copy of these Terms of Use by accessing this Site. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.

  18. General Terms. You are responsible for compliance with all applicable laws. The Terms of Use and the relationship between you and Backupify will be governed by the laws of the State of Delaware, without giving effect to any choice of laws principles that would require the application of the laws of a different country or state. You consent to exclusive personal jurisdiction and venue in, and agree to service of process issued or authorized by, any court located in Delaware. These Terms of Use are personal to you, and you may not transfer, assign or delegate your right and/or duties under these Terms of Use to anyone else and any attempted assignment or delegation is void. You acknowledge that we have the right hereunder to seek an injunction, if necessary, to stop or prevent a breach of your obligations hereunder. The paragraph headings in these Terms of Use, shown in boldface type, are included only to help make these Terms of Use easier to read and have no binding effect. Any delay or failure by us to exercise or enforce any right or provision of these Terms of Use will not constitute a waiver of such right or provision. No waiver by us will have effect unless such waiver is set forth in writing, signed by us; nor will any such waiver of any breach or default constitute a waiver of any subsequent breach or default. These Terms of Use constitute the complete and exclusive agreement between you and us with respect to the subject matter hereof, and supersedes all prior oral or written understandings, communications or agreements. If for any reason a court of competent jurisdiction finds any provision of these Terms of Use, or portion thereof, to be unenforceable, that provision of the Terms of Use will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the remainder of these Terms of Use will continue in full force and effect. If you are a California resident, you waive California Civil Code §1542, which says: "A general release does not extend to claims which the creditor does not know or suspect to exist in his favor at the time of executing the release, which if known by him must have materially affected his settlement with the debtor."
  19. Arbitration Agreement And Jury Trial Waiver, Class Action Waiver, And Forum Selection Clause All controversies, disputes, demands, counts, claims, or causes of action between you and Backupify arising out of, under, or related to these Terms of Use or our privacy practices (including any action we take or authorize with respect to information about or provided by you) shall be settled exclusively through binding arbitration.
    1. Arbitration shall be subject to the Federal Arbitration Act and not any state arbitration law. The arbitration shall be conducted before one commercial arbitrator with substantial experience in resolving commercial contract disputes from the American Arbitration Association (“AAA”). As modified by these Terms of Use, and unless agreed upon by the parties in writing, the arbitration will be governed by the AAA’s Commercial Arbitration Rules and, if the arbitrator deems them applicable, the Supplementary Procedures for Consumer Related Disputes (collectively “Rules and Procedures”).
    2. 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.
    3. Notwithstanding the foregoing, either you or Backupify may bring an individual action in small claims court. In addition, if you are a user outside of the United States, the dispute resolution provision in our Privacy Policy (if any), and not this arbitration provision, shall apply to any disputes related to privacy. Further, claims of defamation, violation of the Computer Fraud and Abuse Act, and infringement or misappropriation of the other party’s patent, copyright, trademark, or trade secret shall not be subject to this arbitration provision. Such claims shall be exclusively brought (unless such courts do not have personal jurisdiction in the dispute) in the courts located in Delaware. Additionally, notwithstanding this arbitration provision, either party may seek emergency equitable relief before such courts in order to maintain the status quo pending the arbitrator’s ruling, and hereby agree to submit to the personal jurisdiction of such courts. A request for interim measures shall not be deemed a waiver of the right to arbitrate.
    4. 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.
    5. 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.
  20. SURVIVAL. Sections 4, 5, 7, 8, 9, and 11 through 21, as well as any other limitations on liability explicitly set forth herein and our proprietary rights in and to the Site, Content provided by us, Our Technology and the Services, will survive the expiration or termination of these Terms of Use for any reason.
  21. NOTICE; VIOLATIONS. We may give notice to you by email, a posting on the Site, or other reasonable means. You must give notice to us in writing via email to info@backupify.com or as otherwise expressly provided. Please report any violations of these Terms of Use to info@backupify.com.
  22. GOVERNMENT USE. If you are accepting these Terms of Use on behalf of a United States federal government entity, please email us at info@backupify.com for the applicable amendments.

LAST UPDATED: Feburary 29, 2012