Terms & Conditions of Service | Vault America End Customer Agreement
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. 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 in advance based upon the then applicable service bundle which includes gigabyte (GB) data utilization, per user licenses, and any applicable one-time or recurring charges and fees.
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 and billing will continue until such time as request for cancellation or deletion has been received and processed by Vault America.
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’s 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 current MSP.
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.
Terms & Conditions of Service | Vault America MSP/Wholesale Partner Agreement
This agreement (the “Agreement”) is a legal agreement between you, either an individual or a single legal entity (“You” or “you”), and Vault America. This Agreement governs your use of the Vault America Client software distributed with this Agreement, including any updates that may be provided to you and any accompanying written documentation (the “Software”) and the Vault America data protection service (“Service”).
COMMUNICATIONS
You acknowledge and agree that Vault America may occasionally send you administrative communications regarding your account or the Service via email.
ACCOUNTS, PASSWORDS, AND SECURITY
You must be a registered user to access the Service. You are responsible for keeping your password secure. You will be solely responsible and liable for any activity that occurs under your user name. If you lose your password or the encryption key for your account, you may not be able to access your Data.
ACCEPTABLE USE AND CONDUCT
You are solely responsible for your conduct and your data related to the Service. You agree to indemnify, defend, and hold harmless Vault America and its suppliers from any and all loss, cost, liability, and expense arising from or related to your data, your use of the Service, or your violation of these terms.
The Software and Service are made available to you, your company, and/or your customers only for personal or commercial use, which use must be in compliance with all applicable laws, rules and regulations and must not infringe or violate third party rights.
Any unauthorized use of any Vault America computer system is a violation of this Agreement and certain federal and state laws. Such violations may subject the unauthorized user and his or her agents to civil and criminal penalties.
CONSENT TO COLLECT NON-PERSONAL INFORMATION; USE OF DATA
The Software and Service may collect certain identifiable information that resides on your computer, including, without limitation, statistics relating to how often backups are started and completed, performance metrics relating to the Software, and configuration settings. This information collected will be sent to Vault America and may be used by Vault America in-house to provide reporting to our clients.
When you back up data via the Service, you agree that we will be storing such data as part of the Service to provide proper reporting and monitoring for a reseller’s own clients.
CHANGES TO THE SERVICE AND TERMS AND CONDITIONS
Vault America reserves the right at any time to modify, suspend, or discontinue providing the Service or any part thereof in its sole discretion with or without notice.
Vault America will use commercially reasonable efforts to notify you of modification, suspension, or discontinuance of the Service either by sending an email to the email address you provide with your registration or by a posting on Vault America.com website. However, in no event will Vault America be liable to you or to any third party for any modification, suspension or discontinuance of the Service with or without notice.
Vault America reserves the right at any time to modify this Agreement in its sole discretion, without liability to you. This Agreement, as amended, will be effective upon acceptance of registration for new users and effective for all existing users 15 days after the posting of any amended terms on the Vault America.com website. You agree to be bound by this Agreement, as modified. If you do not agree to any changes to this Agreement, you must terminate your account immediately.
Please review the most current version of this Agreement from time to time, located athttp://www.vaultamerica.com/wholesale-partner-tos (or such successor URL as Vault America may provide), so that you will be apprised of any changes.
USE OF SOFTWARE
Subject to the terms and conditions of this Agreement, Vault America grants you a non-exclusive license to install and execute copies of the Software (in executable code form only) on your company’s and/or customers’ computers and only for the purpose of accessing and using the Service. Certain third party code may be provided with the Software. The third-party license terms accompanying such code, and not the terms of this Section, will govern your use of such code.
The Software and its structure, organization, source code, and documentation contain valuable trade secrets of Vault America and its licensors, and accordingly you agree not to (and agree not to allow third parties to) (1) sublicense, lease, rent, loan, transfer, or distribute the Software and/or Service or any derivative thereof to any third party who is not your customer, (2) modify, adapt, translate, or prepare derivative works from the Software or Service, (3) decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Software or Service, (4) extract portions of the Software’s files for use in other applications, or (5) remove, obscure, or alter Vault America’s or any third party’s trademarks or copyright or other proprietary rights notices affixed to or contained within or accessed in conjunction with or through the Software or Service.
INTELLECTUAL PROPERTY
You acknowledge that Vault America or third parties own all right, title and interest in and to the Software and Service, portions thereof, or software or content provided through or in conjunction with the Software or Service, including without limitation all intellectual property rights. Except for the license granted in this Section, all rights in and to the Software and Service are reserved, and no implied licenses are granted by Vault America.
If you have comments on the Software or Service or ideas on how to improve them, please visit http://vaultamerica.com/contact-us. Please note that by doing so, you also grant Vault America a perpetual, royalty-free, irrevocable, transferable license, with right of sublicense, to use and incorporate your ideas or comments into the Software or Service (or third party software, content, or services), and to otherwise exploit your ideas and comments, in each case without further compensation.
TERM AND CANCELLATION
Subject to the terms and conditions hereof, this Agreement is effective upon signing up for the Vault America Service and shall continue for a one month term. Upon completion of the initial term, and each subsequent term, the Agreement shall renew for another one month term thereafter unless notification is provided by either party 60 days prior to the expiration of the then current term. If you cancel Vault America Service prior to the completion of the then current contract term, you shall be responsible for payment for the next 60 days or the next two months. (Example: The Agreement is signed on January 1 and the initial term is January 1st through January 31st. You signed the Agreement with a Monthly Commitment of $125. If you cancel on January 31st, you will be responsible for the months of February and March or $250.)
This Agreement automatically terminates if you fail to comply with its terms and conditions. Vault America reserves the right to refuse or discontinue participation to any user at any time at its sole discretion. You agree that, upon such termination, you will destroy and permanently erase all copies of the Software and that your access rights to the Service will immediately terminate.
The terms of the Sections entitled Consent to Collect Non-Personal Information, Intellectual Property, Disclaimer of Warranties, Limitation of Liability, and Miscellaneous will survive expiration or termination.
If this Agreement terminates, other than for your failure to comply, Vault America has no obligation to provide you with a copy of your Data and may remove and discard any Data.
Vault America shall not provide a refund for any unused portion of Service paid in advance by User.
DISCLAIMER OF WARRANTIES
THE SOFTWARE AND SERVICE AND ANY THIRD PARTY SOFTWARE AND SERVICES ARE PROVIDED “AS IS,” WITH NO WARRANTIES WHATSOEVER. VAULT AMERICA AND SUCH THIRD PARTIES EXPRESSLY DISCLAIM TO THE FULLEST EXTENT PERMITTED BY LAW ALL EXPRESS, IMPLIED, AND STATUTORY WARRANTIES, INCLUDING, WITHOUT LIMITATION, THE WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT OF PROPRIETARY RIGHTS AND ANY WARRANTIES REGARDING THE SECURITY, RELIABILITY, TIMELINESS, AND PERFORMANCE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE OR SERVICES.
YOU UNDERSTAND AND AGREE THAT YOU DOWNLOAD AND/OR USE THE SOFTWARE AND SERVICE, AND ALL THIRD PARTY SOFTWARE OR SERVICES MADE AVAILABLE IN CONJUNCTION WITH OR THROUGH THE SOFTWARE OR SERVICE, AT YOUR OWN DISCRETION AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OR USE OF THE SOFTWARE OR SERVICE AND SUCH THIRD PARTY SOFTWARE AND SERVICES.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSIONS MAY NOT APPLY TO YOU. YOU MAY ALSO HAVE OTHER RIGHTS THAT VARY FROM STATE TO STATE AND JURISDICTION TO JURISDICTION.
LIMITATION OF LIABILITY
UNDER NO CIRCUMSTANCES SHALL VAULT AMERICA, OR ITS SUPPLIERS, RESELLERS, PARTNERS OR THEIR RESPECTIVE AFFILIATES BE LIABLE FOR ANY INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL, EXEMPLARY, OR PUNITIVE DAMAGES ARISING FROM OR RELATED TO THE SOFTWARE OR SERVICE, WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, (EVEN IF VAULT AMERICA HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES).
WITHOUT LIMITING THE FOREGOING, THE TOTAL AGGREGATE LIABILITY OF VAULT AMERICA, AND ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES ARISING FROM OR RELATED TO THIS AGREEMENT SHALL NOT EXCEED THE AMOUNT, IF ANY, PAID BY YOU TO VAULT AMERICA FOR THE SOFTWARE OR SERVICES. IF THE SOFTWARE AND SERVICES ARE PROVIDED WITHOUT CHARGE, THEN VAULT AMERICA AND ITS SUPPLIERS SHALL HAVE NO LIABILITY TO YOU WHATSOEVER.
THE FOREGOING LIMITATIONS OF LIABILITY SHALL APPLY WHETHER THE DAMAGES ARISE FROM USE OR MISUSE OF AND RELIANCE ON THE SOFTWARE OR SERVICE, FROM INABILITY TO USE THE SOFTWARE OR SERVICE, OR FROM THE INTERRUPTION, SUSPENSION, OR TERMINATION OF THE SOFTWARE OR SERVICE (INCLUDING SUCH DAMAGES INCURRED BY THIRD PARTIES). SUCH LIMITATION SHALL APPLY NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY AND TO THE FULLEST EXTENT PERMITTED BY LAW.
SOME STATES OR OTHER JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL, CONSEQUENTIAL, OR DIRECT DAMAGES, SO THE ABOVE LIMITATIONS AND EXCLUSIONS MAY NOT APPLY TO YOU.
THE SOFTWARE AND SERVICE ARE NOT INTENDED FOR USE IN CONNECTION WITH ANY NUCLEAR, AVIATION, MASS TRANSIT, OR MEDICAL APPLICATION OR ANY OTHER INHERENTLY DANGEROUS APPLICATION THAT COULD RESULT IN DEATH, PERSONAL INJURY, CATASTROPHIC DAMAGE, OR MASS DESTRUCTION, AND LICENSEE AGREES THAT LICENSOR WILL HAVE NO LIABILITY OF ANY NATURE AS A RESULT OF ANY SUCH USE OF THE SOFTWARE.
MISCELLANEOUS PROVISIONS
You acknowledge and agree that the Software which is the subject of this Agreement, may be controlled for export purposes. You agree to comply with all United States export laws and regulations. You assume sole responsibility for any required export approval and/or licenses and all related costs and for the violation of any United States export law or regulation. If you are located in a country subject to embargo by the United States government, you are not entitled to use the Software or Service.
This agreement will be governed by and construed in accordance with the laws of the State of Massachusetts, without giving effect to any conflict of laws and provisions that would require the application of the laws of any other jurisdiction. The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
The failure of Vault America to exercise or enforce any right or provision of this Agreement does not constitute a waiver of such right or provision. If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be unenforceable, the remainder of this Agreement will continue in full force and effect.
This Agreement, which may incorporate exhibits and or addendums, constitutes the entire agreement between the parties with respect to the subject matter hereof and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter. Any waiver of any provision of this Agreement will be effective only if in writing and signed by Vault America.
All disputes arising out of this Agreement will be subject to the exclusive jurisdiction of the state and federal courts serving Massachusetts, and the parties agree and submit to the personal and exclusive jurisdiction and venue of these courts, except that nothing will prohibit Vault America from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights.
You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Vault America. Vault America may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning.
MONTHLY MINIMUM COMMITMENT AND RATE
Monthly minimum gigabyte or license commitment, rate per compressed gigabyte or per license, and monthly minimum revenue commitment effective upon the acceptance and or placement of an order for Vault America Service(s).
CONTACT
Please address any questions or concerns regarding this Agreement by contacting Vault America by telephone at (888) 523-3282, by email at sales@vaultamerica.com, or through our website at www.vaultamerica.com/support.