TERMS AND CONDITIONS

These terms and conditions, including the Privacy Policy, which is incorporated herein by this reference, (together, the “Terms”), are a binding legal contract between The Backup Service, Inc., its affiliates, licensors, and subsidiaries (collectively, “The Backup Service”), and the individual or legal entity who directly or indirectly accesses, uses, and/or purchases the Services (as defined herein) (collectively, “YOU” or “YOUR”). By accessing, using and/or purchasing the Services, YOU represent that YOU have the authority to enter into and agree to these Terms. If YOU do so on behalf of a legal entity, YOU represent and warrant that YOU have the authority to accept these Terms on behalf of that legal entity, and YOU represent and warrant that all users of the Services at such legal entity shall comply with these Terms. YOUR continued access to, use and/or purchase of the Services following modification to the Services or these Terms constitutes YOUR agreement to be bound by these Terms, as modified. If YOU do not agree to be bound by these Terms, YOU may not access, use and/or purchase the Services. YOU acknowledge and agree that YOU are accepting these Terms on behalf of all persons who access, use and/or purchase the Services and that YOU shall have sole and exclusive responsibility for ensuring that all users understand and comply with these Terms.

YOUR ACCOUNT

YOU must create an account, and provide accurate contact and other personal information, that is protected by a username and password (YOUR “Account”). YOU agree to provide The Backup Service with accurate and complete Account information. YOU agree to keep YOUR password, YOUR software and/or encryption keys, if applicable, and YOUR Account details secret, and not share them with anyone else, in order to prevent unauthorized access to YOUR Account. If YOUR contact information or other Account information changes, YOU must update YOUR Account details promptly. After YOU create an Account, the Services can begin to upload, download, and access content and materials for which YOU have a legal right to copy, publish, share, store or otherwise use (YOUR “User Data”).

If YOU purchase the Services through a legal entity such as YOUR business, or through an authorized partner, YOU acknowledge and agree that other users may have been designated to access, control, and manage YOUR Account and YOUR User Data. The Backup Service takes YOUR right to privacy and the security of YOUR Account and User Data seriously. YOU, not The Backup Service, are solely responsible for YOUR Account and User Data. The Backup Service is not liable for any loss or damage arising from any unauthorized access to, sharing or use of, YOUR Account, software and/or encryption keys and User Data. In no event will The Backup Service be liable for any loss of User Data or other claims to the extent arising out of unauthorized access to YOUR Account by obtaining YOUR password, software and/or encryption keys. YOU must notify privacy@TheBackupService.com immediately if YOU believe there has been unauthorized access to YOUR Account, software and/or encryption keys or YOUR User Data.

OFFERINGS

These Terms govern all of The Backup Service’s offerings and features, and any components that support the functionality of the services, including all Documentation (together, the “Services”). Documentation is defined as The Backup Service’s websites (“the “Website”), an invoice, order form, or other similar document, the customer support knowledgebase and any FAQs, all current information that exists in customer and partner portals, and all other collateral provided by The Backup Service from time to time.

Free Services. The Backup Service may offer free Services, including free trials of the Services (“Free Services”). Free Services require an active Account and may be subject to certain time and/or usage limits, which are explained in the Documentation for each Free Service. YOU acknowledge and agree that (i) the Free Services may not meet YOUR requirements or perform as intended; (iii) use of the Free Services may not be uninterrupted, error-free, free of faults or viruses or secure; (iv) YOUR use of the Free Service is for the sole purpose of evaluating and testing and providing feedback to The Backup Service; (v) YOU shall at no time store more than the amount of data as provided for in the Documentation, and any such stored data shall not be sensitive in nature, including, but not limited to, personally identifiable information, financial or other protected records; (vi) YOU shall inform YOUR employees, temporary workers, consultants, subcontractors and agents of the nature of the limitations on use of the Free Services and its obligations hereunder; and (vii) the evaluation and testing shall be performed only in a non-production environment. Free Services associated with YOUR Account that remain inactive for a period of thirty (30) calendar days will be removed and YOUR User Data deleted. The Backup Service may discontinue Free Services at any time and from time-to-time, at which point YOUR access to the Free Services will end and any User Data will be deleted.

Beta Services. The Backup Service may designate certain enhancements or new features of the Services as “Beta Services.” Beta Services are not intended for use in a production environment. YOU acknowledge and agree that the Beta Services (i) are subject to these Terms, (ii) are experimental in nature, have not been fully tested, and may be discontinued at any time without notice, (iii) may not meet YOUR requirements or perform as intended, (iv) may not be uninterrupted, error-free, or free of faults, and (v) are for the sole purpose of evaluating and testing the Beta Services and providing feedback to The Backup Service. YOU shall inform YOUR employees and other users regarding the nature of Beta Services.

Subscription Services. If YOU purchase software-as-a-service and/or hardware-as-a-service subscriptions from The Backup Service, YOU consent to The Backup Service’s and its third-party storage providers’ ability to access, copy and store YOUR User Data. Following acceptance of an applicable order, The Backup Service will provide YOU with access to download software, software key(s), if applicable, and any components that support the functionality of the Services. YOU may request, and The Backup Service may offer an expedited manual service to pre-load and/or restore YOUR User Data, which shall be subject to additional terms and conditions.

Cloud Disaster Recovery Services. If YOU purchase cloud disaster recovery (“CDR”) services from The Backup Service, YOU understand and agree that CDR services shall be subject to additional CDR Terms and Conditions. In the event of a conflict between these Terms and the CDR Terms and Conditions, such conflict shall be resolved by giving precedence to the CDR Terms and Conditions and then to these Terms.

Managed Services. If YOU purchase Managed Services from The Backup Service, YOU understand and agree that such Managed Services shall be subject to additional Managed Services Terms and Conditions. In the event of a conflict between these Terms and the Managed Services Terms and Conditions, such conflict shall be resolved by giving precedence to the Managed Service Terms and Conditions and then to these Terms.

Software Licenses. If YOU purchase software license(s) from The Backup Service, YOU understand and agree that such software licenses shall be subject to the Software License Terms and Conditions. In the event of a conflict between these Terms and the Software License Terms and Conditions, such conflict shall be resolved by giving precedence to the Software License Terms and Conditions and then to these Terms.

Hardware Sales. If YOU purchase hardware from The Backup Service, YOU understand and agree that such hardware sales shall be subject to the Hardware Terms and Conditions. In the event of a conflict between these Terms and the Hardware Terms and Conditions, such conflict shall be resolved by giving precedence to the Hardware Terms and Conditions and then to these Terms.

Professional Services. If YOU purchase professional services from The Backup Service to assist YOU in the installation, configuration, maintenance and/or training with respect to YOUR use of the Services, YOU understand and agree that such professional services shall be subject to the Professional Services Terms and Conditions. In the event of a conflict between these Terms and the Professional Services Terms and Conditions, such conflict shall be resolved by giving precedence to the Professional Services Terms and Conditions and then to these Terms.

TERM, AUTOMATIC RENEWAL AND CANCELLATION

To obtain Services from The Backup Service, YOU may be required to sign and approve or submit an invoice, order form, or other similar document, which incorporates these Terms by reference. By purchasing the Services, YOU authorize The Backup Service or an authorized partner to invoice YOU or charge YOUR credit card or bank account (echeck), and YOU agree to pay all fees in connection with the Services. The prices for renewals may be different than those paid for an initial purchase. YOU are responsible for, and The Backup Service may perform at any time, an audit in order to true up YOUR actual storage/capacity usage. YOU agree that additional storage increments/capacity (i.e., GB) will be automatically added to YOUR Account if YOUR use of certain Services exceeds YOUR committed quantities as stated in YOUR invoice, order form or other similar document, and YOU will be automatically charged, and YOU agree to pay, any and all such overages. Incomplete or incorrect Account information, or failure to pay fees when due, will result in inactivation of YOUR Account, the cancellation of YOUR subscription and deletion of YOUR User Data.

All fees are exclusive of any sales, value-added, foreign withholding or other government taxes, duties, fees, excises, or tariffs imposed on the production, storage, licensing, sale, transportation, import, export or use of the Services or performance of any services (collectively, “Taxes”). YOU are responsible for and, if applicable, will reimburse The Backup Service within thirty (30) days of a request for all such Taxes and any related penalties, except for taxes imposed on The Backup Service’s net income.

YOU may cancel any Service for a full refund within the first thirty (30) days of delivery by notifying The Backup Service at support@TheBackupservice.com after such time, if YOU choose to cancel, fees already paid will not be refunded to YOU. YOUR access to, use and/or purchase of the Services will automatically terminate or expire, and YOUR Account and access to YOUR User Data will be deleted upon (i) non-renewal, cancellation, or expiration of YOUR Services or failure to pay fees when due, if applicable, (ii) The Backup Service’s discontinuation of the Services, or (iii) failure to comply with these Terms. YOU acknowledge and agree that after any non-renewal, cancellation, or expiration of YOUR Services: (i) all licenses granted hereunder (if any) will immediately terminate and YOU shall immediately cease all use of the related Services (except hardware purchased and paid for by YOU); (ii) YOU shall remove all copies (or permit The Backup Service to remove all copies, if applicable) of the Services from YOUR computer systems; (iii) YOU remain responsible for and shall immediately pay in full all outstanding payments to The Backup Service; and (iv) it is The Backup Service’s policy to automatically and irretrievably delete all User Data protected by YOUR Account that is stored on The Backup Service servers or with The Backup Service’s third-party cloud storage providers and The Backup Service shall have no liability to YOU for such action.

YOUR CONDUCT

Compliance. YOU represent and warrant that YOU have performed an environmental and systems assessment and that The Backup Service will rely on such assessment information that YOU provide in order to recommend the appropriate Services needed to support YOUR computing environment. YOU agree that while The Backup Service may recommend certain Services to YOU, YOU are responsible for determining the appropriateness of the Services actually purchased. YOU are solely responsible for ensuring that YOU are in compliance with: (i) all obligations related to YOUR use of the Services; (ii) all license terms applicable to third party operating systems, databases, applications, files, software and other solutions (collectively, YOUR “System”) on YOUR computer, server, tablet, smartphone or any other device YOU register with The Backup Service, including hardware delivered to YOU as part of the Services, (each a “Device”); and (iii) all applicable federal, state, and local laws, foreign laws, rules, and regulations. YOUR responsibilities under these Terms shall not be mitigated, diminished or transferred to The Backup Service if The Backup Service, in the context of providing the Services, assists with the restoration of any or all of YOUR System. The Backup Service does not endorse and has no control over the content of User Data submitted by YOU or anyone else. The Backup Service is not responsible for User Data or for actively monitoring User Data for inappropriate or illegal content and YOU shall be solely responsible for the collection, accuracy, legality, completeness and use of YOUR User Data.

YOU shall defend, indemnify and hold harmless The Backup Service, and its officers, directors, employees, agents, shareholders, affiliates, subsidiaries, suppliers, and licensors, from and against any and all damages, fines, penalties, assessments, liabilities, losses, costs, and expenses (including, but not limited to, attorneys’ fees, expert fees, and out-of-pocket expenses) in connection with YOUR use of the Services, YOUR violation of these Terms, any violation of the rights of any other person or entity by YOU, including, but not limited to, any intellectual property rights, failure to encrypt or take reasonable privacy and security safeguards to protect User Data, any misuse or fraudulent use of credit cards, any claims that the Services or any part thereof were used or exported or otherwise shipped or transported by YOU in violation of applicable laws, rules, and regulations, including, but not limited to, any claim that YOUR User Data is illegal. YOU agree not to settle or resolve any such claim in a manner that imposes any fault, liability or obligation on The Backup Service without the advance written approval of The Backup Service.

YOUR Conduct. The Backup Service may, immediately and without notice to YOU, cancel YOUR subscription, disable YOUR Account and cease providing the Services to YOU, if YOU: (i) harm, disrupt, or otherwise engage in activity that diminishes The Backup Service’s brand, Services, computer systems, hardware, or network; (ii) misrepresent YOUR identity, impersonate any person or attempt to gain access to or illegally track any account, computers, or networks related to the Services, without authorization; (iii) manipulate a Service in any manner not specified by The Backup Service; (iv) interfere with The Backup Service’s policy with respect to excessive bandwidth usage, as determined by The Backup Service; (v) store, back up, or distribute any illegal or unauthorized files or data, or material protected by intellectual property rights of a third party, unless YOU own or have appropriate rights to such material; (vi) store, back up, or distribute material that contains viruses, Trojan horses, worms, corrupted files, or any material that may damage the operation of the Services or another person’s device, hardware, data, or property; (vii) engage in conduct that would otherwise give rise to civil liability, or that constitutes or encourages conduct that could constitute a criminal offense, under any applicable law or regulation; (viii) directly or indirectly reverse engineer, decompile, disassemble, modify, reproduce or create derivative works of the Services; (ix) merge the Services with other products, software or services; (x) alter or modify any disabling mechanism; (xi) willfully render any part of the Services unusable; (xii) assign, rent, loan, or otherwise transfer the Services; (xiii) remove or alter any proprietary notices (e.g., copyright, trademark notices, legends, etc.) received in the provision of the Services; or (xiv) breach any material term herein.

THE BACKUP SERVICE PROPERTY

If YOUR Services includes use of hardware, YOU agree that YOUR rights to use the hardware are limited to use in accordance with the applicable Documentation and only for the purpose of YOUR access, use and/or purchase of the Services. YOU acknowledge that The Backup Service and its licensors own and reserve all right, title, and interest in and to all of the Services and any components that support the functionality of the Services, Websites and any Documentation, and any and all copies thereof and all proprietary rights therein, including, but not limited to, copyrights, patents, trademarks, logos, domain names, and other brand features of The Backup Service. The Backup Service will make the Websites and Services available to YOU on a non-exclusive, non-transferable, non-sublicensable, limited and revocable basis. The Services may contain, or The Backup Service may provide to YOU, third-party hardware, products, software, and programming (the “Third-Party Components”). YOU acknowledge and agree that terms accompanying such Third-Party Components will govern their use.. YOU may provide feedback to The Backup Service with respect to the Services and The Backup Service may use feedback for any purpose without obligation of any kind. To the extent permission is required under YOUR intellectual property rights to make use of the feedback, YOU hereby grant The Backup Service an irrevocable, non-exclusive, perpetual, royalty-free right to use YOUR feedback in connection with The Backup Service’s business, including, but not limited to, enhancement of the Services.

The Backup Service may discontinue, suspend, or modify the Services, any feature included in the Services, or the availability of the Services on any particular device or hardware, at any time and without notice to YOU. If any third party makes an intellectual property infringement claim relating to the Services, The Backup Service reserves the right to immediately terminate YOUR license to the Services. While not obligated to do so, The Backup Service will endeavor to communicate any such actions by providing electronic notice to YOU or by posting relevant information to the Websites.