1. Customer acknowledges that (i) the prices and other charges contemplated under this Agreement are based on the limited warranty, disclaimer and limitation of liability specified herein and (ii) such charges would be substantially higher if any of these provisions were unenforceable.
2. Vault America shall have no liability should there be any delay in the provision of the Service.
2.1 Vault America does not make any independent representations or warranties with respect to any Customer Equipment. Any third party warranties are the exclusive remedies of Customer with respect to such Equipment.
2.2 Vault America reserves the right to suspend provision of the Service or any part thereof for the purpose of carrying out or implementing such repair, maintenance or improvement, provided that in the event of such suspension Vault America will use its reasonable endeavors to ensure that reasonable notice is given to Customer and minimum disruption to the Service is caused. Vault America reserves the right to limit Customer bandwidth utilization if Vault America determines that Customer bandwidth utilization is excessive.
2.3 Vault America may also suspend the Service or any part thereof or terminate the Agreement without liability on its part if the provision of the Service or the relevant part of the Service is prohibited by law, statute, legislation, order, regulation or guidance issued by a court of law, governmental body or regulatory body.
3. The Agreement shall, subject to Section 6, continue for a Minimum Service Period (MSP) of 12 months as specified on page one of this order form from the Commencement Date, or, from the account order registration/ signup date recorded upon checkout if submitted electronically. Upon completion of the initial MSP, and each subsequent MSP, the Agreement shall renew for another MSP thereafter unless written notification as defined in Section 14 is provided by either party 60 days prior to the expiration of the MSP or the Agreement is terminated by either party in accordance with section 6 of this agreement.
3.1 If Customer cancels Vault America Service prior to the completion of the Minimum Service Period, Customer shall be responsible for an Early Termination Penalty. “Early Termination Penalty” means the Customer has terminated their service prior to the Minimum Service Period and is responsible for payment for the remaining months in the Minimum Service Period. (Example: Commencement Date of January – December. The Customer has signed the Agreement with a Monthly Commitment of $100. If the Customer cancels in October the Early Termination Penalty would be $200.).
4. Customer will be responsible for securely storing, managing and deploying when required any encryption key or password which are generated to protect Customer data. If Customer loses the encryption keys or passwords, Vault America is unable to assist in data restoration. A one-time fee of $100 will be charged to the Customer to re-seed data if Customer loses the encryption key.
4.1 Customer will not, and will not permit any third party, to (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software, source code or underlying proprietary information except as may be permitted by law and which rights cannot be excluded.
4.2 Customer is solely responsible for verification of the accuracy of the data that resides with Vault America under the client Software and that the service is accurately installed and the appropriate data is sent offsite.
5. The Monthly and Installation Charges are payable within 30 days after receipt of an invoice, in U.S. currency. All late payments will result in Customer being charged interest rate on any unpaid balances at the minimum of either one and one half percent (1 ½%) per month or the maximum allowed by law. Monthly invoicing is based upon data utilization rounded up to the nearest gigabyte (GB).
5.1 Vault America will be entitled to increase such charges by giving written notice of the same to Customer not less than 30 days prior to the increase. Customer has the option to notify Vault America in writing within 30 days of notice of price increase that Customer wishes to terminate their service with no penalty.
5.2 All charges for the Service and the other services are exclusive of taxes, which, if it is applicable, will be added to Customer’s invoice.
5.3 If Customer disputes charges, Customer must notify Vault America in writing of the dispute within thirty (30) days of the date on the affected bill, or else waives the right to dispute.
5.4 Customer will be responsible for reimbursing Vault America for all costs (including reasonable attorney fees) associated with collecting delinquent or dishonored payments.
5.5 Customer requests to delete data or accounts must be provided in writing to Vault America. No requests for cancellation or deletion will be completed without written notice subject to Section 14 of this agreement.
6. Subject to Section 6.2, in the event that Customer or Vault America is in breach of the Agreement and such a breach is not remedied within fourteen (14) days of receipt of written notice from Vault America or Customer requiring such breach to be remedied, Vault America or Customer (as the case may be) shall, without prejudice to its other rights, have the right to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer or Vault America (as the case may be). Default in paying any sum due under the Agreement will be remedied only if the payment includes interest payable pursuant to Section 5.
6.1 Vault America shall be entitled, without prejudice to its other rights, to terminate the Agreement forthwith and without liability on its part in respect of such termination by written notice to Customer if Customer is in breach of this agreement or Customer fails to pay any sum due under the Agreement within the period specified in the Agreement.
6.2 If Vault America terminates the Agreement following a breach by the Customer of this Agreement or Customer fails to give sufficient notice of termination in accordance with Section 3.1, Customer will be liable to pay the Installation Charges, all cancellation and other contractual charges incurred by Vault America relating to the provision of Services which have been ordered by Vault America for the purpose of the provision of the Service. Customer will also pay Vault America any Early Termination Penalties including, but not limited to, minimum monthly usage commitments multiplied by the remaining months in the Minimum Service Period.
6.3 Upon the termination of the Agreement, without prejudice to any other rights Vault America may have, Customer shall:
6.3.1 within fifteen (15) days of the date of termination, deliver up to Vault America and forthwith remove and/or destroy all components of the Service Provider Technology, any Confidential Information of Vault America and any materials bearing Vault America’s trade-marks from any storage media or hard copies remaining in Customer’s control or possession;
6.3.2 provide an officer’s certificate attesting to such delivery, erasure and/or destruction as is satisfactory to Vault America, acting reasonably;
6.3.3 remit all fees payable for services due prior to the date of such termination;
6.3.4 remit to Vault America all such costs and fees owing to Vault America including those related to the permanent or temporary winding down of any services provided by Vault America
6.4 The provisions of this Terms & Conditions of Service will survive the termination of the Agreement and shall continue in full force and effect. Termination of the Agreement will not affect the rights of either party accrued prior to such termination in respect of a breach of the Agreement.
7. Customer acknowledges and agrees that all proprietary right, title and interest in and to the Service Provider Technology and the Service Provider Software, including all intellectual property rights therein, are owned by Vault America, its licensors, or its underlying Service Providers’ respectively. Customer shall have no right to sublicense or modify any Service Provider Technology.
7.1 During the term of the Agreement Vault America grants Customer a non-exclusive, non-transferable limited license to use the Software solely for the purpose of using the Service and for no other purpose.
7.2 Customer acknowledges that, pursuant to this Agreement, it is given a non-exclusive, nontransferable, royalty-free right to use, during the term of the End-User License Agreement, any Service Provider Software or Service Provider Technology incorporated solely for the purpose of using the Service and not for providing services to any third party. At no time and under no circumstances does Customer acquire an ownership interest in the Product, Service Provider Software or Service Provider Technology.
7.3 Customer further acknowledges and agrees that: (i) it is expressly prohibited from translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Service Provider Software under the terms of this Agreement or the End-User License Agreement; (ii) Vault America shall have all right, title, interest in and to all copies, derivative works, translations, adaptations or modifications of the Service Provider Technology or the Service Provider Software howsoever made by Customer; and (iii) any proceeds derived from the activities described above, whether or not made by Customer in compliance with this Agreement or the End-User License Agreement, shall accrue to Vault America.
8. The liability of Vault America to Customer or Customer’s employees, agents, subcontractors, customers or any other person under or in connection with the Agreement shall be limited by the provisions of these terms and, in particular, Section 8.1
8.1 Except for death or personal injury resulting from the negligence of Vault America or its employees, Vault America’ total liability to the Customer under or in connection with the Agreement (including, without limitation, arising out of any delay in commencing the Service) shall be limited to the Monthly Charges for the time being payable for 12 months.
8.2 Notwithstanding any other provision of the Agreement, in no circumstance shall Vault America be liable to Customer under or in connection with the Agreement or otherwise for:
8.2.1 any loss or corruption of data (whether temporary or permanent);
8.2.2 indirect, special, consequential or incidental damages, including, without limitation, loss of profits or revenue, loss of goodwill, business interruption, loss of anticipated savings, loss of data, cost of capital, however caused, even if such damages were foreseeable and the parties have been advised of the possibility of such damages; or
8.2.3 inability to restore data due to the loss of Customer’s encryption keys.
8.3 Except as expressly provided in this agreement, does Vault America make any express or implied representations, warranties or conditions of any kind, including but not limited to implied or statutory warranties or conditions of merchantability or fitness for a particular purpose.
9. Customer shall indemnify Vault America as required, on demand against any and all reasonable costs, expenses (including, without limitation, legal costs), liabilities, losses, damages, claims, demands and judgments which Vault America incurs or suffers as a result of a breach of this Terms & Conditions of Service.
9.1 Under no circumstances will Vault America be liable for data that was never sent to the data vault by Customer. Customer is advised to review backup sets to ensure that the desired files have been transmitted.
10. Vault America does not make any independent representations or warranties with products provided by third parties. Any third party warranties are the exclusive remedies of Customer with respect to such products.
11. Each party agrees to, 1. keep confidential all the other party’s Confidential Information (whether written or oral) which it has obtained or received as a result of the discussions leading up to or the entering into, or obtains or receives in performance or during the term of, the Agreement; 2. not to disclose the other party’s Confidential Information in whole or in part to any third party without the disclosing party’s written consent, save to those of its employees, agents and contractors involved in the implementation of this Agreement and who have a need to know the same and are bound to keep if confidential;
12. The failure by either party to exercise any right conferred by the Agreement shall not be deemed to be a waiver of any such right nor operate so as to bar the exercise or enforcement of any such right on any later occasion.
13. Additionally, Customer acknowledges that Vault America shall be permitted to assign the Agreement to any successor in title or other entity into, by or with which the business or assets of Vault America to which the Agreement relates may be merged, acquired, consolidated or reorganized, or any entity which may purchase all or substantially all of such business or assets. The Agreement shall be binding upon and shall endure to the benefit of the parties hereto and their respective successors and permitted assigns.
14. Customer shall send Vault America and Vault America shall send Customer any written notice or other document required by or in connection with the Agreement to the Vault America address listed on the Vault America invoice. Any notice to be made by Customer to Vault America, including a notice to delete an account or otherwise terminate the Service, shall be in writing and delivered to Vault America at its offices by hand delivery, overnight delivery service or US Mail, return receipt requested. Vault America shall have no obligation with respect to any other form of notice including facsimile, oral or e-mail notices.
15. Vault America shall not be liable for any breach of the Agreement caused by matters beyond Vault America’ reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, disorder, flood, industrial disputes (whether or not involving Vault America’ employees), weather of exceptional severity or acts of local or central Government or other authorities or regulatory bodies.
16. State law issues concerning the construction, interpretation and performance of these terms and conditions shall be governed by the substantive laws of the State of Massachusetts, excluding its choice of law rules. The U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.