<em>Posted as of December 31, 2020<br> Effective as of December 31, 2020</em>
<p>These Terms of Service (“Terms”) apply to your use of any website, products, and services operated or provided by SpiderOak, Inc.
(“SpiderOak”), including SpiderOakONE, SpiderOak Groups, SpiderOak CrossClave, and Semaphor (collectively, the “Services”).
Please read these Terms carefully and let us know if you have any questions.</p>
If you’re using SpiderOak’s Services on behalf of an organization, you agree to these Terms on behalf of that organization.
<p> </p>Content<p>All content on SpiderOak’s Services is subject to United States and other intellectual property laws.
You’ll find a few different types of content on our service.</p>
You can back up, host, store, and share your own files on SpiderOak’s Services, as well as collaborate and communicate with others using tools like Semaphor and SpiderOak CrossClave.</p>
<p>The files and other materials you upload to the SpiderOak Services are yours and yours alone.
You give us permission to use that material solely to do what’s necessary to provide our services, including storing, displaying, reproducing, distributing the content, and as otherwise required by applicable law.</p>
<p>You’re responsible for the content you upload to SpiderOak’s Services and therefore are responsible for all risks associated with it, including intellectual property or other legal claims against you, SpiderOak, or any suppliers or contractors of SpiderOak.
By storing and sharing content through SpiderOak’s Services, you represent that you have the necessary rights to that material, and that your use of the Services doesn’t conflict with any licenses you’ve granted to others.</p>
<p>You may have the option to try out some SpiderOak Services on a trial basis from time to time.
Please note that if you decide to upgrade to another plan later, the content you store with us during the trial period may not be able to be restored after the trial timeframe expires.</p>
<p>The SpiderOak Services allow you to share your files, information, or data with others.
Please familiarize yourself with the settings and controls for those services and be careful about what you choose to provide, upload, download, transfer, or otherwise share with or from others.</p>
<p>We don’t pre-screen anyone’s content.
However, we have the right—but no duty—to review and remove files for any reason.
We assume no liability for any content that you or anyone else stores with or shares through SpiderOak’s Services.</p>
<strong>SpiderOak’s Content and Brand Features</strong>.
SpiderOak’s Services are protected by copyright, trademark, and other laws.</p>
<p>SpiderOak gives you a personal, worldwide, royalty-free, non-assignable and non-exclusive license to use the any software we provide you to use our Services.
This license is for the sole purpose of enabling you to use SpiderOak’s Services as permitted by these Terms.
If you violate these Terms, we may terminate this license at our sole discretion.</p>
<p>All rights to SpiderOak’s Services, trademarks, logos, or other intellectual property —except third-party content—are and remain the exclusive property of SpiderOak and its licensors.
Nothing in these Terms authorizes you to use any of SpiderOak’s trademarks, logos, domain names, or other distinctive brand features, except as otherwise permitted by law.</p>
<p> </p>Prohibited Activities<p>We strive to maintain great Services.
To that end, SpiderOak requires you to respect these limitations, and we may terminate your account if you don’t follow them.</p>
<li>Don’t use SpiderOak’s Services in a manner that is unlawful, threatening, abusive, hateful, defamatory, slanderous, libelous, deceptive, fraudulent, promoting of violence, invasive of another’s privacy, tortious, indecent or obscene;</li>
<li>Don’t use SpiderOak’s Services in a manner that violates or infringes the rights of others, including without limitation patent, trademark, trade secret, copyright, publicity or other proprietary rights;</li>
<li>Don’t use SpiderOak’s Services in a manner that involves uploading, posting, emailing, transmitting or otherwise making available any data that you not have the right to make available under any law or under contractual or fiduciary relationships (such as insider information, proprietary and confidential information learned or disclosed as part of employment relationships or under non-disclosure agreements, etc.;</li>
<li>Don’t use SpiderOak’s Services to do anything that victimizes, harasses, “stalks,” degrades, attacks or intimidates an individual or group of individuals on any basis, including but not limited to religion, gender, sexual orientation, race, ethnicity, age or disability;</li>
<li>Don’t use SpiderOak’s Services for the purpose of exploiting, harming, or attempting to exploit or harm minors in any way by exposing them to inappropriate content, asking for personally identifiable information, or otherwise;</li>
<li>Don’t use SpiderOak’s Services to promote sexually explicit or pornographic material;</li>
<li>Don’t impersonate any person, business or entity (including but not limited to a SpiderOak official), or in any way falsely state or misrepresent your affiliation with a person or entity;</li>
<li>Don’t use SpiderOak’s Services in any manner that involves forging headers or otherwise manipulating identifiers in order to disguise the origin of any content transmitted or shared through the Services;</li>
<li>Don’t use SpiderOak’s Services in any manner that permits the creation, support, distribution, or other transfer of any viruses or any other computer code, files or programs that interrupt, impair, destroy or limit the functionality of any computer software or hardware or telecommunications equipment, or otherwise permit the unauthorized use of a computer or computer network;</li>
<li>Don’t interfere with the proper functioning of any software, hardware, or equipment on SpiderOak’s Services;</li>
<li>Don’t engage in any conduct that inhibits or disupts anyone else’s use or enjoyment of our Services, or which we determine may harm SpiderOak or our users;</li>
<li>Don’t instigate or encourage others to commit illegal activities or cause injury to any person or property damage;</li>
<li>Don’t encourages or otherwise engage in any conduct that would constitute a criminal offense or that gives rise to civil liability;</li>
<li>Don’t use SpiderOak’s Services contrary to our policies, any Agreement you have with SpiderOak, or our rules, policies, or other guidelines applicable to the Services;</li>
<li>Don’t violate the ITAR Act §22 USC 2778 and its amendments, including but not limited to the import or use of the Services in Afghanistan, Belarus, Burma, the Central African Republic, China, the Ivory Coast, Cuba, Cyprus, Democratic Republic of Congo, Eritrea, Haiti, Iran, Iraq, Kyrgyzstan, Lebanon, Liberia, Libya, North Korea, Russia, Somalia, Sri Lanka, Sudan, Syria, Venezuela, Vietnam, or Zimbabwe.
<li>Please don’t use SpiderOak’s Services if you’re under sixteen years old or the age of majority in your jurisdiction.</li>
<p> </p>Our Rights<p>We’re always working to improve SpiderOak’s Services, so we do reserve some rights.
In our sole discretion, we may, at any time—with or without notice—change, eliminate or restrict access to our Services, and modify, suspend, or terminate a user account.
SpiderOak is not liable for any damages as a result of these actions.</p>
<p> </p>Other Sites and Services<p>SpiderOak contains links to websites and services that we neither own nor control.
We don’t endorse or assume responsibility for any third-party sites, information, materials, products, or services.</p>
Please review those provisions, too.</p>
<p> </p>Security<p>We take the security of SpiderOak’s Services very seriously.
We work to protect your content and account, but we can’t 100% guarantee that third parties won’t be able to defeat our security measures and access your account and any Content you have uploaded or shared through the Services.
You acknowledge and agree that all use of the Services is at your own risk.
Please let us know immediately if you discover any compromise or unauthorized use of your account.</p>
<p> </p>Copyright<p>Where appropriate, SpiderOak may warn and/or suspend repeat copyright infringers.
In more serious cases, we may permanently terminate user accounts.</p>
<p>Section 512 of the Digital Millennium Copyright Act (“DMCA”) sets out the legal requirements to formally report copyright infringement to a service provider like SpiderOak.
It also explains how the person who posted the content can oppose a notice of alleged infringement by submitting a counter-notice.</p>
<p>Please think carefully before sending us a copyright notice or counter-notice, because the DMCA imposes legal and financial penalties for making fraudulent or bad-faith claims.
If you aren’t sure whether you’re the actual copyright holder or if you’re authorized to act on a rights holder’s behalf, check with an attorney before submitting a copyright notice or counter-notice to us.</p>
<p> </p>Copyright Infringement Notice Procedure<p>To send us a notice concerning copyright infringement, you’ll need to provide the following information:</p>
<li>A physical or electronic signature of the copyright owner or a person authorized to act on their behalf (typing your full name will do);</li>
<li>Identification of the copyrighted work claimed to have been infringed (e.g., a copy of or link to your original work or clear description of the materials allegedly being infringed);</li>
<li>Identification of the infringing material and information reasonably sufficient to permit us to locate the material on our services (e.g., a URL where the allegedly infringing material is located);</li>
<li>Your contact information, including your address, telephone number, and an email address;</li>
<li>Date you are sending the notice;</li>
<li>A statement that you have a good-faith belief that the use of the material in the manner asserted is not authorized by the copyright owner, its agent, or the law.
<li>A statement that the information in the notification is accurate, and, under penalty of perjury, that you are authorized to act on behalf of the copyright owner.</li>
<p>You can report alleged copyright infringement by emailing the above information to email@example.com.</p>
<p>You can also mail a copyright notice to: Laura Gowans, SpiderOak, Inc., 8216 Marshall Drive, Lenexa, KS 66214, USA.</p>
<p>Our response to notices of alleged copyright infringement may include removing or restricting access to allegedly infringing material.
If we remove or restrict access to content in response to a copyright notice, we’ll make a good-faith effort to get in touch with the affected account holder to provide information about the situation, including a copy of the takedown notice and instructions for filing a counter-notification.</p>
<em>Copyright Infringement Counter-Notice Procedure</em>.
If you get a message from us about a DMCA complaint, it means that the content identified in the notice has been removed from SpiderOak or access to the content has been restricted.</p>
<p>Please read our message carefully, because it’ll include information about the copyright notice we received and instructions about how to file a counter-notice.</p>
</strong>: If you re-post material removed in response to a DMCA notification, we may permanently suspend your account.
If you believe content was removed in error, please consider filing a counter-notice instead of re-posting the material.</p>
<p>If you receive a DMCA notification about material you’ve posted and you believe that material was misidentified or removed in error, you can file a counter-notice by following the instructions below.</p>
<p>To submit a counter-notice, please send us the following information:</p>
<li>A physical or electronic signature (typing your full name will do);</li>
<li>Identification of the material that has been removed or to which access has been disabled and the URL at which the material appeared before it was removed or access to it was disabled (the description from the DMCA notice is enough);</li>
<li>A statement under penalty of perjury that you have a good-faith belief that the material was removed or disabled as a result of mistake or misidentification of the material to be removed or disabled.
<li>Your name, address, and telephone number, and a statement that you consent to the jurisdiction of the federal district court for the judicial district in which your address is located, or if your address is outside of the United States, for any judicial district in which SpiderOak may be found, and that you will accept service of process from the person who provided the copyright notification or an agent of such person.</li>
<p>To submit a counter-notice, please respond to our original email letting you know about the removal, and include the above information in the body of your reply.</p>
<p>When we receive a valid counter-notice, we’ll promptly forward a copy to the person who sent us the copyright notice.
If we aren’t told within 10 business days that the original reporter is seeking a court order to prevent further infringement of the material, we may replace or cease disabling access to the material that was removed.</p>
<p> </p>Children<p>SpiderOak’s Services are only for users that are either16 years old and older or have attained the age of majority in their jurisdiction.
If we learn an account is registered to a user that is under the age of majority , we’ll terminate the minor’s account.</p>
<p> </p>SpiderOak Groups, Enterprise Backups, SpiderOak CrossClave, and Semaphor<p>You must operate your SpiderOak Services account(s) consistent with any policies your group or employer may require.
Please note that an administrator of a group or team may be able to access, restrict, retain, terminate, or remove information from your account with or without notice to you.</p>
<p> </p>Cancellation<p>You can cancel your account any time you’d like by simply signing in and canceling your service.
Our policy is not to refund subscription fees unless required by law.</p>
<em>SpiderOak’s Services are provided “as is” without any warranties, express or implied.
SpiderOak disclaims all conditions and warranties, whether express, implied, statutory or otherwise, including warranties of merchantability, fitness for a particular use, and non-infringement.
(Some states don’t allow these disclaimers, so this provision might not apply to you.)</em>
<p> </p>Limitation of Liability<p>TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL SPIDEROAK OR ITS AFFILIATES OR SUPPLIERS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, PUNITIVE, COLLATERAL, EXEMPLARY, SPECIAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, LOSS OF PROFITS, GOODWILL, DATA OR USE DAMAGES) ARISING FROM OR IN CONNECTION WITH THE USE OF SERVICES, EVEN IF SUCH PARTIES HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
THE FOREGOING LIMITATION SHALL APPLY REGARDLESS OF THE FORM OF ACTION AND WHETHER IN CONTRACT, BREACH OF WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY OR OTHERWISE.
CERTAIN STATE LAWS DO NOT ALLOW LIMITATIONS ON IMPLIED WARRANTIES OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES.</p>
<p>TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL SPIDEROAK’S AGGREGATE LIABILITY EXCEED THE GREATER OF THE FEES PAID BY CUSTOMER RELATED TO SUCH SERVICES IN THE THREE (3) MONTHS IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH LIABILITY OR TWENTY-FIVE DOLLARS.</p>
<p>REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION AGAINST SPIDEROAK ARISING OUT OF OR RELATED TO USE OF THE SERVICES MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.</p>
<p>UNDER NO CIRCUMSTANCES WILL SPIDEROAK BE LIABLE IN ANY WAY FOR THE CONTENT OF ANY DATA TRANSMITTED, RECEIVED OR OTHERWISE ENCOUNTERED BY USERS OF THE SERVICES OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF THE USE OF SUCH DATA.</p>
<p> </p>Indemnification<p>You agree to defend, indemnify, and hold harmless SpiderOak, its affiliates, suppliers, and its and their respective directors, officers, employees and agents, licensors, representatives, contractors, successors, and assigns from and against claims, liabilities, judgements, losses, expenses, damages and costs, including reasonable attorneys’ fees, arising out of or relating to your violation of these Terms or your use of the Services, including, but not limited to, your Content, or any use of the Services other than as expressly authorized in these Terms, or your use of any information obtained from the Services.
SpiderOak reserves the right to assume, at its sole expense, the exclusive defense and control of any matter subject to indemnification by you, in which event you agree to fully cooperate with SpiderOak in asserting any available defenses.</p>
<p> </p>Arbitration<p>We like to resolve disputes fairly, quickly, and easily.
Toward that end, if you have any issue with SpiderOak, please contact us and we’ll work with you in good faith to try to resolve the matter.</p>
<p>If we can’t work out the problem informally, and if you are a resident of or have your principal place of business in the United States or Canada, you and SpiderOak agree to resolve any claim against each other through final and binding arbitration, including claims against SpiderOak affiliates, officers, directors, employees and agents, and SpiderOak affiliates’ officers, directors, employees and agents.</p>
<p>You and SpiderOak agree to submit the dispute to a single arbitrator under the Commercial Arbitration Rules of the American Arbitration Association (AAA) including the Optional Rules for Emergency Measures of Protection and the Supplementary Procedures for Consumer-Related Disputes, or, by separate mutual agreement, to another arbitration institution.
The AAA’s rules and a description of the arbitration process are available at www.adr.org.</p>
<p>The arbitration will be held in the Kansas City, Missouri metropolitan area, or any other location both parties agree to in writing.
Allocation of fees and costs shall be determined under the AAA rules, except that SpiderOak will reimburse you for all AAA administrative fees in disputes that are subject to the Supplementary Procedures for Consumer-Related Disputes, unless the arbitrator determines that a claim or counterclaim was filed for purposes of harassment or is patently frivolous.</p>
<p>The award rendered by the arbitrator shall include costs of arbitration, reasonable attorneys’ fees, and reasonable costs for expert and other witnesses.
Any judgment on the award rendered by the arbitrator may be entered in any court of competent jurisdiction.</p>
<p>The Federal Arbitration Act governs all disputes between you and SpiderOak.
The arbitrator will decide whether a dispute can be arbitrated.</p>
<p>If you opt out of the arbitration agreement (as provided below), or if the arbitration agreement is found to be unenforceable, or if you neither are a resident nor have a principal place of business in the United States or Canada, you agree to resolve any claim you have with SpiderOak exclusively in a state or federal court with jurisdiction over Johnson County, Kansas and to submit to the personal jurisdiction of those courts for purpose of litigating all such disputes.</p>
<p>Nothing shall prevent either party from seeking injunctive or other equitable relief from the courts for matters related to data security, intellectual property, or unauthorized access to the services.</p>
<p> </p>YOUR RIGHT TO OPT OUT OF ARBITRATION<p>You may opt out of the agreement to arbitrate.
If you do so, neither you nor SpiderOak can require the other to participate in an arbitration proceeding.
To opt out, you must notify SpiderOak within 90 days of the date that you first agreed to these Terms.
Send your written opt-out notice to this address: Arbitration Opt-Out, Attn: Laura Gowans, SpiderOak, Inc., 8216 Marshall Drive, Lenexa, KS 66214, USA.</p>
<p>Your written opt-out notice must include (1) your name and residence address.
(2) the email address and/or mobile telephone number associated with your account.
(3) a clear statement that you want to opt out of this arbitration agreement.
and (4) your signature.</p>
<p> </p>NO CLASS ACTIONS<p>You may bring disputes only on an individual basis and not in a class, consolidated, or representative action.</p>
<p> </p>Governing Law and Jurisdiction<p>These Terms will be governed by the laws of the State of Kansas, except for its conflict of laws principles.</p>
<p>For claims that aren’t subject to arbitration, we each agree to submit to the personal jurisdiction of a state court located in Johnson County, Kansas or in the United States District Court for the District of Kansas.</p>
If any provision of these Terms is found to be invalid, illegal, or unenforceable, such provision shall be eliminated or limited to the minimum extent such that the remaining provisions of these Terms will remain in full force and effect.</p>
<p> </p>No Waiver<p>No waiver of any provision of these Terms shall be a further or continuing waiver of that term.
SpiderOak’s failure to assert any right or provision under these Terms does not constitute a waiver of that right or provision.</p>
<p> </p>Modification<p>The Terms may be modified from time to time in our sole discretion.
The date of the most recent revisions will always be at https://spideroak.com/terms-of-service/, and older versions will be archived at spideroak.com.
If we make changes that we believe will substantially alter your rights, we will post the revisions 7 days before they take effect so you can review them.
Any such changes will apply only to users that have accepted the Terms.
You’ll agree to accept any changes or revisions to the Terms by continuing to use SpiderOak’s Services at any time following the effective date of such revision.</p>
<p> </p>Contact<p>We welcome all questions, concerns, and feedback you might have about these Terms.
If you have suggestions for us, please contact our customer success team.</p>