2. FREE TRIAL
3. USE OF PRODUCTS
3.3. We reserve the right at any time to make Enhancements to, replace, modify, discontinue or add to the Products, including revisions to Specifications, functionality, and features such as storage and retention. We will use reasonable commercial efforts to provide You notice of any material changes by email or by updating relevant information in the applicable Online Portal.
4. RESTRICTIONS ON PRODUCT ACCESS AND USE
4.3. If we reasonably believe any Product use or Backed-up Data: (i) violates any of the restrictions in the foregoing sections; (ii) may disrupt or threaten the operation or security of any computer, network, system or the Products; or (iii) may otherwise subject us to liability, we reserve the right to refuse or disable access to the Product or Backed-up Data. We may also take such action pursuant to the Digital Millennium Copyright Act and/or as required to comply with Applicable Law. We will use reasonable efforts to contact an Administrator prior to taking such action. However, we may restrict access to any Product or Backed-up Data without prior notice as necessary to comply with Applicable Law or to protect against damage or security threats. If we take any such action without prior notice, we will later provide notice to an Administrator, unless prohibited by Applicable Law.
5. BACKED-UP DATA and OFFICE 365 SECURITY
5.1. Customer represents and warrants it has all rights (including from Backed-up Sites and Users and Office 365 accounts) as necessary to permit access, copying and use of Backed-up and Office 365 Data (collectively called “Data”) with the Product. Customer is responsible for the accuracy, quality and legality of the Data, and the means by which Customer acquired rights to the Data for use with the Product. For purposes of this Agreement, the Data is the property of Customer, not any User, and we are under no obligation to inform Users that Customer controls such information with us.
5.3. Customer retains all its right, title and interest in and to the Data, and we neither own nor acquire rights in the Data other than the rights expressly granted under this Agreement.
5.4. We will use physical, technical and administrative safeguards, consistent with commercially reasonable industry practices, designed to secure the confidentiality, integrity and availability of the Data under our control against accidental or unauthorized loss, access or disclosure. We use the same safeguards for all Data, regardless of its nature or contents. We are a processor and not a controller of all Customer Data.
5.5. Customer must maintain authorization and access to the Data so that we are regularly able to access the Data for purposes of providing the Product. Customer agrees and acknowledges that the Data may not be available or restorable a) if Customer changes such access authority or otherwise restricts our access to the Data; b) due to unavailability of the Backed-up Site or to Office 365 Data; c) with respect to modifications to the Data that are not captured in the backup frequency or retention schedule for the Product.
5.6. Unless otherwise agreed to in writing in a separate Business Associate Agreement, You agree that the data will not contain Protected Health Information and Your use of a Product will not otherwise make us a Business Associate of Customer or any Administrator. You must request that we enter into a valid Business Associate Agreement with the appropriate party and ensure such agreement is in place prior to the transfer of any Data that requires a Business Associate Agreement. The terms “Protected Health Information” “Business Associate” and “Business Associate Agreement” will have the same meanings as set forth in the Health Insurance Portability and Accountability Act of 1996 (HIPAA), as amended by the Health Information Technology for Economic and Clinical Health Act of 2009 (HITECH Act), and such regulations as may be further amended from time to time (collectively, the HIPAA Standards).
6. USE OF OTHER INFORMATION
6.1. If You provide us with comments or other feedback regarding the Products or our business (collectively “Feedback”), directly or through any third party, You do so without any expectation of compensation and hereby grant us a worldwide, irrevocable, perpetual, royalty-free right and license to use the Feedback to improve the Products and for any other purpose. Feedback is strictly voluntary, and we are not required to hold it in confidence.
6.3. Operational data concerning use of the Products (“Log Data”), that servers automatically record relating to the access and use of the Products, IP address, authentication tokens, machine identification, access logs, and settings are used by us to provide the Products and operate our business and you agree that we may use such Log Data for such purposes.
7. FEES AND PAYMENTS FOR DIRECT CUSTOMERS
7.1. This Section on Fees and Payments apply only when Customer orders a Product directly from us.
7.2. When You order a Product, the terms of this Agreement will govern, and not any other terms such as those pre-printed on Your purchase order. You may place an Order directly with us in accordance with our designated processes.
7.3. Unless quoted separately by us in writing, current prices are set forth in the XSolutions Cloud Data Protection Service Agreement. We reserve the right to change our prices at anytime. If we change our prices for existing customers, we will notify You of such changes 30 days prior to charging the new fee. Payments are to be made by credit card, automatically charged by us on the first of each month unless we expressly authorize different terms in writing.
7.4. You agree to pay all applicable charges for the Products ordered by you, including prepaid charges, monthly recurring charges, and any additional usage-based charges. Fees and payments will be calculated by us based solely on records maintained by us. You must notify us of any payment dispute in writing within fifteen (15) days of receipt of a disputed invoice. Prices do not include taxes, duties, and fees (such as shipping and handling) unless otherwise quoted. You will pay and be solely liable for all taxes including sales, use, excise and any other taxes, duties or charges with respect to the Products, but excluding taxes based on our net income.
7.5. All new orders for physical Products will be shipped from us freight prepaid and billed to You; title and risk of loss to such physical Products will pass to You upon shipment to the destination designated in Your order or to any customs officials or border authority.
7.6. You must provide us with complete and accurate billing and contact information including Your complete legal name, street address, e-mail address, credit card details, and the name and telephone number of an authorized billing contact. You agree to update this information within three (3) days of any change. You must provide an approved payment method (“Payment Method”) with each Order. By providing us with a Payment Method, You authorize us to automatically charge that Payment Method, or any updated Payment Method provided by You, for all charges and fees incurred in connection with the Product You order. We reserve the right to change our approved Payment Methods at any time and will use reasonable commercial efforts to alert You to any such changes.
7.7. All amounts payable by You will be made without setoff, deduction or withholding. We may charge interest at the rate of 1.5% per month (or the highest rate permitted by law) on late payments. If we are unable to collect any amount owed, we may take any other steps deemed necessary to collect such fees, and You will be responsible for all our incurred costs such as collection fees, court costs and attorneys’ fees. Furthermore, in the event of non-payment, following notice of such non-payment, we may suspend or terminate access to and use of a Product until payment is made in full.
8. YOUR RESPONSIBILITY FOR ACCESS TO YOUR PRODUCT ACCOUNT
8.1. You are responsible for the security of all Your access credentials to the Product, including any action You permit any person or entity to take related to the Product and Backed-up Data using your access credentials. You are responsible for the proper configuration and maintenance of safeguards as they relate to access to and use of the Product and Backed-up Data, including but not limited to individual Administrator and User permissions, local Device access, network connectivity and internet connectivity.
8.2. You agree to notify us as soon as practicable of any unauthorized use of any access credentials, password or account or any other known or suspected breach of security.
9.1. We will provide reasonable support for the Products in accordance with our current support Policies as outlined in the XSolutions Cloud Data Protection Service Agreement. An Administrator authorized by Customer is responsible for providing first level support or to request support from the Service Provider. By requesting support services from the Service Provider, Customer authorizes us to access the Product and/or the Backed-up Data for the purpose of providing the requested support. We may rely on the instructions and authorizations given to us by any Administrator with access to a Product, and we will have no obligation to inform any other Administrator of the Product of the same.
9.2. Service Provider will provide support for the Product during normal business hours, Monday through Friday from 9:00 AM to 6:00 PM. Support requests outside of normal business hours are subject to charge at current hourly rates.
10. UPDATES AND TESTING
10.1. You agree that we may, and You hereby authorize us, from time to time, to interact remotely with any deployed Product in order to test, troubleshoot, or update such Product. During maintenance windows the Product may not be accessible; we will make reasonable efforts to notify You of such maintenance windows.
11. CONFIDENTIAL INFORMATION
11.2. Confidential Information does not include any information that (i) is or becomes generally known to the public without breach of any obligation owed to the disclosing party, (ii) was known to the receiving party prior to its disclosure by the disclosing Party without breach of any obligation owed to the disclosing party, (iii) is received from a third party without breach of any obligation owed to the disclosing party, (iv) was independently developed by the receiving party; (v) is approved for release or disclosure by the disclosing party without restriction; or (vi) is Feedback, Aggregate Data, Log Data or Backed-up Data.
11.3. Notwithstanding the foregoing, each party may disclose Confidential Information to the limited extent required in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with Applicable Law, provided that the party required to make any such disclosure, where permitted by Applicable Law in the reasonable judgment of that party’s counsel, will first have given written notice to the other party in order to allow the disclosing party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure.
11.4. Each party acknowledges that any breach of any provision of this Section on Treatment of Confidential Information by the receiving party may cause immediate and irreparable injury to the disclosing party, and in the event of such breach, the injured party will be entitled to seek and obtain injunctive relief to the extent provided by a court of applicable jurisdiction, without bond or other security, and to any and all other remedies available at law or in equity.
12. WARRANTIES AND DISCLAIMERS
12.1. Each of us represents and warrants that it has validly entered into this Agreement; has the legal power to do so; and (iii) by entering into this Agreement it is not in violation of any previous agreement or obligation between it and any third party.
12.2. During an applicable Subscription Term, we will provide the Product using a commercially reasonable level of skill and care in material accordance with the applicable Specifications. Your exclusive remedy in the event that we do not do so is to terminate this Agreement or any Order for cause as specified in section 17b.
EXCEPT FOR THE LIMITED WARRANTIES HEREIN, THE PARTNER OR AFFILIATE PRODUCTS ARE PROVIDED AS IS AND WITH ALL FAULTS. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, WE DISCLAIM ALL OTHER PROMISES, REPRESENTATIONS AND WARRANTIES, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, SYSTEM INTEGRATION, DATA SECURITY, OR WARRANTIES ARISING OUT OF ANY COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE OF TRADE.
WE MAKE NO REPRESENTATIONS OR WARRANTIES ABOUT ANY PARTNER OR AFFILIATE PRODUCT’S COMPLIANCE WITH LAWS AND REGULATIONS SPECIFICALLY APPLICABLE TO ANY CUSTOMER OR INDUSTRY AND DISCLAIM ALL LIABILITY ASSOCIATED THEREWITH.
WE ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM RISKS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS.
WE DISCLAIM ANY DUTIES OF A BAILEE, AND YOU HEREBY WAIVE ALL RIGHTS AND REMEDIES OF A BAILOR (ARISING UNDER COMMON LAW OR STATUTE), RELATED TO OR ARISING OUT OF ANY POSSESSION, STORAGE, OR TRANSMISSION OF DATA BY US. YOU ACKNOWLEDGE THAT NO PASSWORD-PROTECTED SYSTEM OF DATA STORAGE CAN BE MADE ENTIRELY IMPENETRABLE AND AGREE THAT THE PRODUCTS AND BACKED-UP DATA ARE NOT GUARANTEED AGAINST ALL SECURITY THREATS OR OTHER VULNERABILITIES.
NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY US OR ANY RESELLER, ADMINISTRATOR OR OTHER PARTY WILL CREATE ANY ADDITIONAL WARRANTIES, ABROGATE THE DISCLAIMERS SET FORTH ABOVE OR IN ANY WAY INCREASE THE SCOPE OF OUR OBLIGATIONS HEREUNDER.
13. LIMITATION OF LIABILITY
13.1. TO THE FULLEST EXTENT ALLOWED BY APPLICABLE LAW, IN NO EVENT WILL EITHER PARTY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES OR COSTS, REGARDLESS OF THE NATURE OF THE CLAIM, ARISING OUT OF THE USE OR INABILITY TO USE THE PARTNER OR AFFILIATE PRODUCTS, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE). IN NO EVENT WILL WE BE LIABLE FOR THE PROCUREMENT OF SUBSTITUTE SERVICES OR PRODUCTS.
13.2. TO THE FULLEST EXTENT PERMITTED BY APPLICABLE LAW, OUR ENTIRE CUMULATIVE LIABILITY FOR ALL CLAIMS AND DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT OR STRICT LIABILITY) WILL BE LIMITED TO DIRECT DAMAGES ONLY THAT DO NOT EXCEED AN AMOUNT EQUAL TO THE FEES WE RECEIVE FOR THE INDIVIDUAL APPLICABLE PARTNER OR AFFILIATE PRODUCT IN THE 6 FULL CALENDAR MONTHS IMMEDIATELY PRECEDING THE MONTH IN WHICH THE EVENT INVOLVING THAT PARTNER OR AFFILIATE PRODUCT GIVING RISE TO THE CLAIM OCCURRED.
13.3. For the Office 365 Security component of the Product operates necessarily through a combination of means and takes into account the current knowledge of e-mail attacks, malware, Phishing techniques, including spear phishing. We will make our best efforts to configure this component, if contracted for, to provide maximum protection.
It should also be emphasized that the Office 365 Security component is subject to a Client-specific parameterization and control that determines, in relation to its activity, the risks that it has found and the level of setting it considers appropriate, as also determined by us. The human factor is therefore a key element in the implementation of a security policy as well as the awareness of the users of direct messages and the information system of the Customer and is dependent on good practices. Finally, the Office 365 Security component includes blocking and/or deleting emails detected as suspicious or dangerous which the Customer acknowledges.
In the event that liability be incurred by us, it shall be capped in any case, irrespective of the legal basis invoked, except for gross negligence or bodily harm to the professional liability ceiling as set forth in section 13.2.
In any case, we cannot be held liable for any damage that may arise in particular from the interception of a false-positive, from the inability to access an email or an attachment in view of the nature of the Office 365 Security component and that, upon loss of data, profits, opportunities, the commercial disturbance, the impairment of the image that would result from a Client’s setup, misuse of the Office 365 Security component or fault of the Client or one of its users.
14.3. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the party seeking indemnification will notify the indemnifying party in writing promptly upon learning of any claim for which indemnification is sought; (b) the indemnifying party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
15. EXPORT CONTROL AND GOVERNMENT USES
15.1. You represent and warrant that Your use of the Products and the Backed-up Data will comply with all export laws, restrictions, national security controls, and regulations of the United States or other applicable authority. You will not export or re-export or allow the export or re-export of the Products (or Backed-up Data through use of the Products) in violation of any such export laws, restrictions, controls or regulations.
16. ARBITRATION; CLASS ACTION WAIVER
16.1. All claims and disputes arising out of this Agreement or the use of any Product, except for those set forth below, that can’t be settled informally between us will be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association (“AAA”). Arbitration proceedings must be initiated within the statute of limitations and within any deadlines imposed under AAA rules for the pertinent claim. Any settlement offer made by either party may not be disclosed to the arbitrator until after the arbitrator’s determination of any award. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) will be made a part of the arbitrator’s award. The arbitration will take place in Rockland County, New York. All aspects of the arbitration proceeding, including but not limited to the award of the arbitrator and compliance therewith, will be strictly confidential.
16.2. Notwithstanding the foregoing, any claims involving the following are not subject to mandatory arbitration: (i) alleged infringement or misappropriation of Intellectual Property Rights; (ii) any claims involving a party’s right to indemnification under this Agreement; or any claim for temporary or permanent injunctive relief.
16.3. In any circumstances where the parties may litigate in court, the parties hereby waive any right to a trial by jury and hereby submit to the personal jurisdiction of the courts set forth in section 18.
16.4. All disputes arising out of or related to this Agreement or any Product must be brought on an individual basis, and You hereby waive Your right to, and agree that You will not, bring (or join) a claim as a plaintiff or a class member in a class, consolidated, or representative arbitration, litigation or other proceeding.
17. TERM AND TERMINATION
17.1. Term. A Subscription Term will commence on the date specified in the XSolutions Cloud Data Protection Service Agreement. There is no fixed term and either party can cancel the service by giving the other party 30-days advanced written notice.
17.2. Termination for Breach. Either party may terminate this Agreement or an individual Order for cause upon 30 days’ notice of a material breach of any of its duties, obligations or responsibilities under this Agreement, provided that the breaching party has failed to cure such breach (or provide an acceptable plan for curing such breach) within the thirty (30) day notice period.
17.3 Termination for Non-payment. If a payment method fails or if Customer fails to give us valid payment information, we will contact the Customer by email. If the Customer fails to give us valid payment information within 72 hours, we will terminate the Customer’s account.
17.4. Access to Backed-up Sites. If a Backed-up Site amends its API guidelines in such a way that materially affects our ability to access the Backed-up Site to provide the Product in accordance with the Specifications, and if we are unable to perform substantially the same functionality, either party may terminate the applicable Order by providing to the other thirty (30) days’ written notice. We will refund any unused prepaid fees for the remainder of the applicable Subscription Term as your sole and exclusive remedy.
17.5. Effect of Termination. Upon any termination of a Subscription Term, Customer will immediately discontinue all use of the Product. For up to thirty (30) days after the effective date of termination, we will, upon written request allow Customer to export or download a copy of its Backed-up Data as provided in the Specifications. After such period, we have no obligation to maintain or provide any Backed-up Data and may thereafter delete or destroy all copies of the Backed-up Data, unless legally prohibited.
18.2. Governing Law. This Agreement will be governed, by New York State law, without reference to conflicts of law principles. The parties agree that exclusive jurisdiction for any permitted actions connected with this Agreement will be in the Superior Courts of Rockland County, New York or the United States District Court for the District of New York. This Agreement will not be governed by the U.N. Convention on Contracts for the International Sale of Goods.
18.3. Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
18.4. Enforceability. If any provisions herein are deemed invalid, illegal, or unenforceable, the validity, legality and enforcement of the remaining provisions will not be affected or impaired.
18.5. Electronic Communications. You consent to receive communications from us in electronic form and agree that this Agreement and all notices, disclosures, and other communications that we provide to You electronically satisfy any legal requirement as if in writing.
18.6. Assignment. You may not assign this Agreement (including with respect to any individual Product or Backed-up Data), without our express written consent. Any assignment or transfer in violation of the foregoing will be null and void. We reserve the right to assign this Agreement to any (i) affiliate; or (ii) any entity in connection with the sale, combination, or transfer of all or substantially all of the assets from any other corporate form of reorganization by or of us. Subject to all of the terms and conditions hereof, this Agreement is binding upon the parties, their permitted successors and assigns.
18.8. No Waiver. The failure to enforce or the waiver by either of us of one default or breach by the other will not be considered to be a waiver of any subsequent default or breach.
18.9. Survival. The applicable sections titled Fees and Payment, Use of Other Information, Confidential Information, Warranties and Disclaimer, Limitations of Liability, Indemnification, Term and Termination, Arbitration and Class Action Waiver, Miscellaneous and Definitions will survive the termination or expiration of this Agreement.
18.10. No Third-Party Beneficiaries. There are no third-party beneficiaries to this Agreement.
18.12. Notices. All notices required or permitted hereunder will be in writing and delivered by nationally recognized overnight courier (e.g., UPS, FedEx) and will be deemed effective upon receipt as evidenced by courier delivery confirmation. Notices to You will be sent to You at the address specified in Your XSolutions Cloud Data Protection Service Agreement or in an Online Portal. Notices to us must be sent to 20 Squadron BLVD., STE 320, New City, NY 10956 Attn: General Counsel. In addition, we may send any notice required or permitted hereunder to You at the email address specified in the XSolutions Cloud Data Protection Service Agreement and such notice will be deemed effective upon our receipt of email delivery notification.
18.13. Entire Agreement. These Term of Use, applicable Order and applicable Policies constitute the entire understanding of the parties with respect to the subject matter hereof and supersede all prior and contemporaneous written and oral agreements with respect to the subject matter. No modification of this Agreement will be binding on us unless it is in writing and signed by us.
18.14. Publicity. You agree that we may publicly refer to Customer on our website and sales presentations, as a customer of ours and may use Customer’s logo for such purposes.
19.1. “Administrator” means one or more persons or entities authorized by Customer to manage or use the Product on Customer’s behalf, including access to and control of Backed-up Data. A Product may have multiple Administrators and we expressly may rely on the authorization and instructions of any Product Administrator, until we receive written instructions to the contrary.
19.4. “Backed-up Data” means the data and content that Customer designates for copying, backup and use with a Product.
19.5. “Backed-up Site” means a third party application or service with which the Product interacts, upon Customer’s authorization, to obtain copies of the Backed-up Data.
19.6. “Confidential Information” means all operational written or oral information, disclosed by either party to the other that has been identified by the disclosing party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential, but not including Feedback, Aggregate Data, Log Data or Backed-up Data.
19.7. “Customer” or “Client” is the entity that owns the Backed-up Site account. References to “Customer” shall in the applicable context also refer to any Administrator acting on Customer’s behalf.
19.8. “Device” means any hardware-based component of a Product offering.
19.10. “Intellectual Property Rights” means all intellectual property rights, however arising and in whatever media, whether or not registered, including patents, copyrights, trademarks, service marks, trade names, design rights, database rights, domain names, trade secrets or other proprietary rights and any applications for the protection or registration of such rights and all renewals and extensions thereof throughout the world.
19.11. “Online Portal” means a web-based application or interface that contains information related to the Product, including the ability to order, pay for, manage, monitor, support and/or use the Product.
19.12. “Order” means an order for a Product that specifies such things as the Backed-up Site, data storage allotment and/or number of Users. An Order may be created at the time of Product setup, by separate written or electronic document or by an Administrator or reseller on behalf of Customer.
19.14. “Policies” means the terms and conditions applicable to order, configure, access, use, and support of the Products. Policies are published on an Online Portal.
19.15. “Specifications” means any documentation, user manuals or other materials relating to the Products. Specifications as may be published on an Online Portal.
19.18. “User” means an individual affiliated with Customer who Customer authorizes to use or have use of the Product. For purposes of this Agreement, the Customer will be the owner of the Backed-up Data and Customer is responsible for the acts and omissions of its Users.
Last Updated April 2020