Arq Cloud Backup Terms of Service <p>This Haystack Software LLC Arq® Services Agreement (this “Agreement”)
contains the terms and conditions that govern your access to and use of the
Service Offerings (as defined below) and is an agreement between Haystack
Software LLC (also referred to as the “Service Provider,” “we,” “us,” or “our”)
and you or the entity you represent (“you” or “your”).
This Agreement takes
effect when you click an “I Accept” button or check box presented with these
terms or, if earlier, when you use any of the Service Offerings (the “Effective
Date”).
You represent to us that you are lawfully able to enter into contracts
(e.g., you are not a minor).
If you are entering into this Agreement for an
entity, such as the company you work for, you represent to us that you have
legal authority to bind that entity.
Please see Section 14 for definitions of
certain capitalized terms used in this Agreement.</p>
<p>
<strong>1.
Use of the Service Offerings.</strong>
</p>
<p>1.1 Generally.
You may access and use the Service Offerings in accordance with
this Agreement.
Service Terms apply to certain Service Offerings.
You will
comply with the terms of this Agreement and all laws, rules and regulations
applicable to your use of the Service Offerings.</p>
<p>1.2 Your Account.
To access the Services, you must have an account associated
with a valid email address and a valid form of payment.
Unless explicitly
permitted by Service Provider, you will only create one account per email
address.</p>
<p>1.3 Third-Party Content.
Third-Party Content may be used by you at your
election.
Third-Party Content is governed by this Agreement and, if applicable,
separate terms and conditions accompanying such Third-Party Content, which
terms and conditions may include separate fees and charges.</p>
<p>
<strong>2.
Changes.</strong>
</p>
<p>2.1 To the Service Offerings.
We may change or discontinue any or all of the
Service Offerings or change or remove functionality of any or all of the
Service Offerings from time to time.
We will notify you of any material change
to or discontinuation of the Service Offerings.</p>
<p>2.2 To the APIs.
We may change or discontinue any APIs for the Services from
time to time.
For any discontinuation of or material change to an API for a
Service, we will use commercially reasonable efforts to continue supporting the
previous version of such API for 12 months after the change or discontinuation
(except if doing so (a) would pose a security or intellectual property issue,
(b) is economically or technically burdensome, or (c) would cause us to violate
the law or requests of governmental entities).</p>
<p>
<strong>3.
Security and Data Privacy.</strong>
</p>
<p>3.1 Security.
Without limiting Section 10 or your obligations under Section 4,
we will implement reasonable and appropriate measures designed to help you
secure Your Content against accidental or unlawful loss, access or disclosure.</p>
<p>3.2 Data Privacy.
By using the Service Offerings, you consent to the storage of
Your Content in, and transfer of Your Content into, the United States.
If Your
Content contains data which is subject to European Privacy Laws, you agree that
you are the Data Controller and Service Provider is the Data Processor, and
that Service Provider’s third-party service providers and licensors are Data
Sub-Processors.
If your Account Country is outside the United States, Service
Provider may choose to not offer you certain Service features, such as password
recovery.
We will not access or use Your Content except as necessary to
maintain or provide the Service Offerings, or as necessary to comply with the
law or a binding order of a governmental body.
We will not (a) disclose Your
Content to any government or third party or (b) subject to Section 3.3, move
Your Content from the United States.
except in each case as necessary to comply
with the law or a binding order of a governmental body.
Unless it would violate
the law or a binding order of a governmental body, we will give you notice of
any legal requirement or order referred to in this Section 3.2.
We will only
use your Account Information in accordance with the Privacy Policy, and you
consent to such usage.
The Privacy Policy does not apply to Your Content.</p>
<p>3.3 Service Attributes.
To provide billing and administration services, we may
process Service Attributes in the United States.
To provide you with support
services initiated by you and investigate fraud, abuse or violations of this
Agreement, we may process Service Attributes where we maintain our support and
investigation personnel.</p>
<p>
<strong>4.
Your Responsibilities.</strong>
</p>
<p>4.1 Your Accounts.
Except to the extent caused by our breach of this Agreement,
(a) you are responsible for all activities that occur under your account,
regardless of whether the activities are authorized by you or undertaken by
you, your employees or a third party (including your contractors, agents or End
Users), and (b) we and our affiliates are not responsible for unauthorized
access to your account.</p>
<p>4.2 Your Content.
You represent and warrant that you own or have all rights
necessary to possess, copy and use Your Content.
You will ensure that Your
Content and your and End Users’ use of Your Content or the Service Offerings
will not violate any of the Policies or any applicable law.
You are responsible
for evaluating, choosing and configuring the Service Offerings as you deem
appropriate to secure, protect and backup Your Content.
You are solely
responsible for managing the backup of Your Content using the Service
Offerings, and you assume any and all risk of loss of Your Content (except to
the extent caused by our willful and intentional misappropriation of Your
Content).</p>
<p>4.3 Log-In Credentials and Account Keys.
Your log-in credentials and private
keys generated by the Services are for your internal use only and you will not
sell, transfer or sublicense them to any other entity or person, except that
you may disclose your private key to your agents and subcontractors performing
work on your behalf.
You are responsible for keeping your account login
credentials secure and free from unauthorized use.</p>
<p>4.4 End Users.
You will be deemed to have taken any action that you permit,
assist or facilitate any person or entity to take related to this Agreement,
Your Content or use of the Service Offerings.
You are responsible for End
Users’ use of Your Content and the Service Offerings.
You will ensure that all
End Users comply with your obligations under this Agreement and that the terms
of your agreement with each End User are consistent with this Agreement.
If you
become aware of any violation of your obligations under this Agreement caused
by an End User, you will immediately suspend access to Your Content and the
Service Offerings by such End User.
We do not provide any support or services
to End Users unless we have a separate agreement with you or an End User
obligating us to provide such support or services.</p>
<p>
<strong>5.
Fees and Payment.</strong>
</p>
<p>5.1 Service Fees.
We calculate and bill fees and charges monthly.
You will pay
us the applicable fees and charges for use of the Service Offerings as
described on the Site using one of the payment methods we support.
All amounts
payable by you under this Agreement will be paid to us without setoff or
counterclaim, and without any deduction or withholding.
Fees and charges for
any new Service or new feature of a Service will be effective when we post
updated fees and charges on the Site, unless we expressly state otherwise in a
notice.
We may increase or add new fees and charges for any existing Services
you are using by giving you at least 30 days’ prior notice.
We may elect to
charge you interest at the rate of 1.5% per month (or the highest rate
permitted by law, if less) on all late payments.</p>
<p>5.2 Taxes.
Each party will be responsible, as required under applicable law,
for identifying and paying all taxes and other governmental fees and charges
(and any penalties, interest, and other additions thereto) that are imposed on
that party upon or with respect to the transactions and payments under this
Agreement.
All fees payable by you are exclusive of Indirect Taxes.
We may
charge and you will pay applicable Indirect Taxes that we are legally obligated
or authorized to collect from you.
You will provide such information to us as
reasonably required to determine whether we are obligated to collect Indirect
Taxes from you.
We will not collect, and you will not pay, any Indirect Tax for
which you furnish us a properly completed exemption certificate or a direct
payment permit certificate for which we may claim an available exemption from
such Indirect Tax.
All payments made by you to us under this Agreement will be
made free and clear of any deduction or withholding, as may be required by law.
If any such deduction or withholding (including but not limited to cross-border
withholding taxes) is required on any payment, you will pay such additional
amounts as are necessary so that the net amount received by us is equal to the
amount then due and payable under this Agreement.
We will provide you with such
tax forms as are reasonably requested in order to reduce or eliminate the
amount of any withholding or deduction for taxes in respect of payments made
under this Agreement.</p>
<p>
<strong>6.
Temporary Suspension.</strong>
</p>
<p>6.1 Generally.
We may suspend your or any End User’s right to access or use any
portion or all of the Service Offerings immediately upon notice to you if we
determine:</p>
<p>(a) your or an End User’s use of the Service Offerings (i) poses a security
risk to the Service Offerings or any third party, (ii) could adversely impact
our systems, the Service Offerings or the systems or Content of any other
Service Provider customer, (iii) could subject us, our affiliates, or any third
party to liability, or (iv) could be fraudulent;</p>
<p>(b) you are, or any End User is, in breach of this Agreement;</p>
<p>(c) you are in breach of your payment obligations under Section 5.
or</p>
<p>(d) you have ceased to operate in the ordinary course, made an assignment for
the benefit of creditors or similar disposition of your assets, or become the
subject of any bankruptcy, reorganization, liquidation, dissolution or similar
proceeding.</p>
<p>6.2 Effect of Suspension.
If we suspend your right to access or use any portion
or all of the Service Offerings, you remain responsible for all fees and
charges you incur during the period of suspension.</p>
<p>
<strong>7.
Term.
Termination.</strong>
</p>
<p>7.1 Term.
The term of this Agreement will commence on the Effective Date and
will remain in effect until terminated under this Section 7.
Any notice of
termination of this Agreement by either party to the other must include a
Termination Date that complies with the notice periods in Section 7.2.</p>
<p>7.2 Termination.</p>
<p>(a) Termination for Convenience.
You may terminate this Agreement for any
reason by providing us notice and closing your account for all Services for
which we provide an account closing mechanism.
We may terminate this Agreement
for any reason by providing you at least 30 days’ advance notice.</p>
<p>(b) Termination for Cause.</p>
<p>(i) By Either Party.
Either party may terminate this Agreement for cause if the
other party is in material breach of this Agreement and the material breach
remains uncured for a period of 30 days from receipt of notice by the other
party.
No later than the Termination Date, you will close your account.</p>
<p>(ii) By Us.
We may also terminate this Agreement immediately upon notice to you
(A) for cause if we have the right to suspend under Section 6, (B) if our
relationship with a third-party partner who provides software or other
technology we use to provide the Service Offerings expires, terminates or
requires us to change the way we provide the software or other technology as
part of the Services, or (C) in order to comply with the law or requests of
governmental entities.</p>
<p>7.3 Effect of Termination.</p>
<p>(a) Generally.
Upon the Termination Date:</p>
<p>(i) except as provided in Section 7.3(b), all your rights under this Agreement
immediately terminate;</p>
<p>(ii) you remain responsible for all fees and charges you have incurred through
the Termination Date and are responsible for any fees and charges you incur
during the post-termination period described in Section 7.3(b);</p>
<p>(iii) you will immediately return or, if instructed by us, destroy all Service
Provider Content in your possession.
and</p>
<p>(iv) Sections 4.1, 5, 7.3, 8 (except the license granted to you in Section
8.3), 9, 10, 11, 13 and 14 will continue to apply in accordance with their
terms.</p>
<p>(b) Post-Termination.
Unless we terminate your use of the Service Offerings
pursuant to Section 7.2(b), during the 30 days following the Termination Date:</p>
<p>(i) we will not take action to remove from our systems any of Your Content as a
result of the termination.
and</p>
<p>(ii) we will allow you to retrieve Your Content from the Services only if you
have paid all amounts due under this Agreement.</p>
<p>For any use of the Services after the Termination Date, the terms of this
Agreement will apply and you will pay the applicable fees at the rates under
Section 5.</p>
<p>
<strong>8.
Proprietary Rights.</strong>
</p>
<p>8.1 Your Content.
Except as provided in this Section 8, we obtain no rights
under this Agreement from you (or your licensors) to Your Content.
You consent
to our use of Your Content to provide the Service Offerings to you and any End
Users.</p>
<p>8.2 Adequate Rights.
You represent and warrant to us that: (a) you or your
licensors own all right, title, and interest in and to Your Content and
Feedback.
(b) you have all rights in Your Content and Feedback necessary to
grant the rights contemplated by this Agreement.
and (c) none of Your Content
or End Users’ use of Your Content or the Service Offerings will violate this
Agreement.</p>
<p>8.3 Service Offerings License.
We or our licensors own all right, title, and
interest in and to the Service Offerings, and all related technology and
intellectual property rights.
Subject to the terms of this Agreement, we grant
you a limited, revocable, non-exclusive, non-sublicensable, non-transferrable
license to do the following: (a) access and use the Services solely in
accordance with this Agreement.
and (b) use the Service Provider Content solely
in connection with your permitted use of the Services.
Except as provided in
this Section 8.3, you obtain no rights under this Agreement from us, our
affiliates or our licensors to the Service Offerings, including any related
intellectual property rights.
Some Service Provider Content and Third-Party
Content may be provided to you under a separate license, such as an open source
license.
In the event of a conflict between this Agreement and any separate
license, the separate license will prevail with respect to the Service Provider
Content or Third-Party Content that is the subject of such separate license.</p>
<p>8.4 License Restrictions.
Neither you nor any End User will use the Service
Offerings in any manner or for any purpose other than as expressly permitted by
this Agreement.
Neither you nor any End User will, or will attempt to (a)
modify, distribute, alter, tamper with, repair, or otherwise create derivative
works of any Content included in the Service Offerings (except to the extent
Content included in the Service Offerings is provided to you under a separate
license that expressly permits the creation of derivative works), (b) reverse
engineer, disassemble, or decompile the Service Offerings or apply any other
process or procedure to derive the source code of any software included in the
Service Offerings (except to the extent applicable law doesn’t allow this
restriction), (c) access or use the Service Offerings in a way intended to
avoid incurring fees or exceeding usage limits or quotas, including, but not
limited to, excessive downloading of Your Content, (d) resell or sublicense the
Service Offerings.
or (e) use Service Provider Marks for any reason unless
expressly granted written permission from Service Provider.
You will not
misrepresent or embellish the relationship between us and you (including by
expressing or implying that we support, sponsor, endorse, or contribute to you
or your business endeavors).
You will not imply any relationship or affiliation
between us and you except as expressly permitted by this Agreement.</p>
<p>8.5 Feedback.
If you provide any Feedback to us or our affiliates, we and our
affiliates will be entitled to use the Feedback without restriction.
You hereby
irrevocably assign to us all right, title, and interest in and to the Feedback
and agree to provide us any assistance we require to document, perfect, and
maintain our rights in the Feedback.</p>
<p>8.6 Third Party Claims.
In the event you receive notice of any actual or
potential claim of infringement of any third party intellectual property rights
relating to the Service Offerings or use of the Services in connection with
Your Content, you shall cease using the Services and notify us in writing
immediately.
Service Provider shall have sole and exclusive authority in its
discretion to assume and control the defense, defend and settle any such
infringement claim.
Service Provider may, at its election, either: (i) procure
the rights to use that portion of the Services alleged to be infringing.
(ii)
replace the alleged infringing portion of the Services with a non-infringing
alternative.
(iii) modify the alleged infringing portion of the Services to
make it non-infringing.
or (iv) terminate the allegedly infringing portion of
the Services or this Agreement.
We shall have no obligation or liability to
you or any End User arising from your or any End User’s use of the Services
after your receipt of notice of any infringement claim or notice of termination
of this Agreement or our instruction to cease using the Services.</p>
<p>
<strong>9.
Indemnification.</strong>
</p>
<p>You will defend, indemnify, and hold harmless us, our affiliates, third-party
service providers, and licensors, and each of their respective employees,
officers, directors, and representatives from and against any Losses arising
out of or relating to any third-party claim concerning: (a) your or any End
Users’ use of the Service Offerings (including any activities under your
account and use by your employees and personnel).
(b) breach of this Agreement
or violation of applicable law by you, End Users or Your Content.
(c) a dispute
between you and any End User.
or (d) any claim alleging that any of Your
Content infringes or misappropriates a third party’s intellectual property
rights.
In no event shall you agree to any settlement of any indemnified claim
that imposes any monetary or injunctive obligation on us or any other
indemnified party, without our written consent.
You will reimburse us for
reasonable attorneys’ fees, as well as our employees’ and contractors’ time and
materials spent responding to any third party subpoena or other compulsory
legal order or process associated with third party claims described in (a)
through (d) above at our then-current hourly rates.</p>
<p>
<strong>10.
Disclaimers.</strong>
</p>
<p>THE SERVICE OFFERINGS ARE PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY
LAW, OR TO THE EXTENT ANY STATUTORY RIGHTS APPLY THAT CANNOT BE EXCLUDED,
LIMITED OR WAIVED, WE AND OUR AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, AND
LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER
EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE SERVICE OFFERINGS OR THE
THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, INCLUDING ANY IMPLIED OR
EXPRESS WARRANTIES (I) OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A
PARTICULAR PURPOSE, NON-INFRINGEMENT, OR QUIET ENJOYMENT, (II) ARISING OUT OF
ANY COURSE OF DEALING OR USAGE OF TRADE, (III) THAT THE SERVICE OFFERINGS OR
THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR FREE OR FREE OF HARMFUL
COMPONENTS, (IV) THAT ANY CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR
ALTERED, AND (V) THAT THE SERVICE OFFERINGS WILL SATISFY THE REQUIREMENTS OF
ANY LAW OR REGULATION APPLICABLE TO YOU OR YOUR CONTENT (INCLUDING, WITHOUT
LIMITATION, THE EUROPEAN PRIVACY LAWS AND THE Health Insurance Portability and
Accountability Act of 1996).</p>
<p>
<strong>11.
Limitations of Liability.</strong>
</p>
<p>WE AND OUR AFFILIATES, THIRD-PARTY SERVICE PROVIDERS, AND LICENSORS WILL NOT BE
LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR
EXEMPLARY DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, CUSTOMERS,
OPPORTUNITIES, GOODWILL, USE, OR DATA), EVEN IF A PARTY HAS BEEN ADVISED OF THE
POSSIBILITY OF SUCH DAMAGES.
FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES
THIRD-PARTY SERVICE PROVIDERS, OR LICENSORS WILL BE RESPONSIBLE FOR ANY
COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR
INABILITY TO USE THE SERVICES, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR
SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS,
(II) OUR DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY
UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICES FOR
ANY REASON.
(B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
(C)
ANY INVESTMENTS, EXPENDITURES, OR COMMITMENTS BY YOU IN CONNECTION WITH THIS
AGREEMENT OR YOUR USE OF OR ACCESS TO THE SERVICE OFFERINGS.
OR (D) ANY
UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE,
LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA.
IN ANY CASE, OUR
AND OUR AFFILIATES’, THIRD-PARTY SERVICE PROVIDERS’, AND LICENSORS’ AGGREGATE
LIABILITY UNDER THIS AGREEMENT AND/OR RELATING TO THE SERVICES WILL NOT EXCEED
THE AMOUNT YOU ACTUALLY PAY US UNDER THIS AGREEMENT FOR THE SERVICE THAT GAVE
RISE TO THE CLAIM DURING THE 12 MONTHS BEFORE THE LIABILITY AROSE.
THE
LIMITATIONS IN THIS SECTION 11 APPLY ONLY TO THE MAXIMUM EXTENT PERMITTED BY
APPLICABLE LAW.</p>
<p>
<strong>12.
Modifications to the Agreement.</strong>
</p>
<p>We may modify this Agreement (including any Policies) at any time by posting a
revised version on the Site or by otherwise notifying you in accordance with
Section 13.10.
The modified terms will become effective upon posting or, if we
notify you by email, as stated in the email message.
By continuing to use the
Service Offerings after the effective date of any modifications to this
Agreement, you agree to be bound by the modified terms.
It is your
responsibility to check the Site regularly for modifications to this Agreement.
We last modified this Agreement on the date listed at the end of this
Agreement.</p>
<p>
<strong>13.
Miscellaneous.</strong>
</p>
<p>13.1 Assignment.
You will not assign or otherwise transfer this Agreement or
any of your rights and obligations under this Agreement, without our prior
written consent.
Any assignment or transfer in violation of this Section 13.1
will be void.
We may assign this Agreement without your consent (a) in
connection with a merger, acquisition or sale of all or substantially all of
our assets, or (b) to any Affiliate or as part of a corporate reorganization.
and effective upon such assignment, the assignee is deemed substituted for
Service Provider as a party to this Agreement and Service Provider is fully
released from all of its obligations and duties to perform under this
Agreement.
Subject to the foregoing, this Agreement will be binding upon, and
inure to the benefit of the parties and their respective permitted successors
and assigns.</p>
<p>13.2 Entire Agreement.
This Agreement incorporates the Policies by reference
and is the entire agreement between you and us regarding the subject matter of
this Agreement.
This Agreement supersedes all prior or contemporaneous
representations, understandings, agreements, or communications between you and
us, whether written or verbal, regarding the subject matter of this Agreement
(but does not supersede prior commitments to purchase any other Service offered
by Service Provider).
We will not be bound by, and specifically object to, any
term, condition or other provision that is different from or in addition to the
provisions of this Agreement (whether or not it would materially alter this
Agreement) including for example, any term, condition or other provision (a)
submitted by you in any order, receipt, acceptance, confirmation,
correspondence or other document, (b) related to any online registration,
response to any request for information, or other questionnaire, or (c) related
to any invoicing process that you submit or require us to complete.
If the
terms of this document are inconsistent with the terms contained in any Policy,
the terms contained in this document will control. </p>
<p>13.3 Force Majeure.
We and our affiliates, third party service providers, and
licensors, will not be liable for any delay or failure to perform any
obligation under this Agreement where the delay or failure results from any
cause beyond our reasonable control, including acts of God, labor disputes or
other industrial disturbances, electrical or power outages, utilities or other
telecommunications failures, earthquake, storms or other elements of nature,
blockages, embargoes, riots, acts or orders of government, acts of terrorism,
or war.</p>
<p>13.4 Governing Law.
The Governing Laws, without reference to conflict of law
rules, govern this Agreement and any dispute of any sort that might arise
between you and us.
The United Nations Convention for the International Sale of
Goods does not apply to this Agreement.</p>
<p>13.5 Disputes.
EXCEPT AS EXPRESSLY PROVIDED IN THIS SECTION 13.5, YOU AGREE
THAT ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO THIS AGREEMENT, YOUR USE OF
THE SERVICE OFFERINGS OR ANY SERVICES WILL BE RESOLVED BY BINDING ARBITRATION,
RATHER THAN IN COURT.
YOU UNDERSTAND THAT THERE IS NO RIGHT TO A JURY TRIAL IN
ARBITRATION.
ANY ARBITRATION UNDER THIS AGREEMENT WILL BE CONDUCTED PURSUANT
TO THE COMMERCIAL ARBITRATION RULES OF THE AMERICAN ARBITRATION ASSOCIATION,
BEFORE A SINGLE ARBITRATOR IN MIDDLESEX COUNTY, MASSACHUSETTS.
Notwithstanding
the foregoing, you may assert claims against us in small claims court in
Middlesex county, Massachusetts if your claims qualify, and you acknowledge and
agree that we may bring a claim or lawsuit against you in any court, including
to enjoin any actual or threatened infringement or other misuse of the
intellectual property rights of Service Provider, its affiliates, third party
service providers or licensors.</p>
<p>13.6 Trade Compliance.
In connection with this Agreement, each party will
comply with all applicable import, re-import, sanctions, anti-boycott, export,
and re-export control laws and regulations, including all such laws and
regulations that apply to a U.S.
company, such as the Export Administration
Regulations, the International Traffic in Arms Regulations, and economic
sanctions programs implemented by the Office of Foreign Assets Control.
For
clarity, you are solely responsible for compliance related to the manner in
which you choose to use the Service Offerings, including your transfer and
processing of Your Content, the provision of Your Content to End Users, and the
Service Provider region in which any of the foregoing occur.
You represent and
warrant that you and your financial institutions, or any party that owns or
controls you or your financial institutions, are not subject to sanctions or
otherwise designated on any list of prohibited or restricted parties, including
but not limited to the lists maintained by the United Nations Security Council,
the U.S.
Government (e.g., the Specially Designated Nationals List and Foreign
Sanctions Evaders List of the U.S.
Department of Treasury, and the Entity List
of the U.S.
Department of Commerce), the European Union or its Member States,
or other applicable government authority.</p>
<p>13.7 Independent Contractors.
Non-Exclusive Rights.
We and you are independent
contractors, and this Agreement will not be construed to create a partnership,
joint venture, agency, or employment relationship.
Neither party, nor any of
their respective affiliates, is an agent of the other for any purpose or has
the authority to bind the other.
Both parties reserve the right (a) to develop
or have developed for it products, services, concepts, systems, or techniques
that are similar to or compete with the products, services, concepts, systems,
or techniques developed or contemplated by the other party, and (b) to assist
third party developers or systems integrators who may offer products or
services which compete with the other party’s products or services.</p>
<p>13.8 Language.
All communications and notices made or given pursuant to this
Agreement must be in the English language.
If we provide a translation of the
English language version of this Agreement, the English language version of the
Agreement will control if there is any conflict.</p>
<p>13.9 Confidentiality and Publicity.
You may use Service Provider Confidential
Information only in connection with your use of the Service Offerings as
permitted under this Agreement.
You will not disclose Service Provider
Confidential Information during the Term or at any time during the 5-year
period following the end of the Term.
You will take all reasonable measures to
avoid disclosure, dissemination or unauthorized use of Service Provider
Confidential Information, including, at a minimum, those measures you take to
protect your own confidential information of a similar nature.
You will not
issue any press release or make any other public communication with respect to
this Agreement or your use of the Service Offerings.</p>
<p>13.10 Notice.</p>
<p>(a) To You.
We may provide any notice to you under this Agreement by: (i)
posting a notice on the Site.
or (ii) sending a message to the email address
then associated with your account.
Notices we provide by posting on the Site
will be effective upon posting and notices we provide by email will be
effective when we send the email.
It is your responsibility to keep your email
address current.
You will be deemed to have received any email sent to the
email address then associated with your account when we send the email, whether
or not you actually receive the email.</p>
<p>(b) To Us.
To give us notice under this Agreement, you must contact Service
Provider as follows: (i) by email transmission to support@arqbackup.com.
or
(ii) by personal delivery, overnight courier or registered or certified mail to
Haystack Software LLC, 405 Waltham St., Suite 124, Lexington, MA 02421,
attention General Counsel.
Notices provided by personal delivery will be
effective immediately.
Notices provided by email transmission or overnight
courier will be effective one business day after they are sent.
Notices
provided registered or certified mail will be effective three business days
after they are sent.</p>
<p>13.11 No Third-Party Beneficiaries.
Except as set forth in Section 9, this
Agreement does not create any third-party beneficiary rights in any individual
or entity that is not a party to this Agreement.</p>
<p>13.12 U.S.
Government Rights.
The Service Offerings are provided to the U.S.
Government as “commercial items,” “commercial computer software,” “commercial
computer software documentation,” and “technical data” with the same rights and
restrictions generally applicable to the Service Offerings.
If you are using
the Service Offerings on behalf of the U.S.
Government and these terms fail to
meet the U.S.
Government’s needs or are inconsistent in any respect with
federal law, you will immediately discontinue your use of the Service
Offerings.
The terms “commercial item” “commercial computer software,”
“commercial computer software documentation,” and “technical data” are defined
in the Federal Acquisition Regulation and the Defense Federal Acquisition
Regulation Supplement.</p>
<p>13.13 No Waivers.
The failure by us to enforce any provision of this Agreement
will not constitute a present or future waiver of such provision nor limit our
right to enforce such provision at a later time.
All waivers by us must be in
writing to be effective.</p>
<p>13.14 Severability.
If any portion of this Agreement is held to be invalid or
unenforceable, the remaining portions of this Agreement will remain in full
force and effect.
Any invalid or unenforceable portions will be interpreted to
effect and intent of the original portion.
If such construction is not
possible, the invalid or unenforceable portion will be severed from this
Agreement but the rest of the Agreement will remain in full force and effect.</p>
<p>
<strong>14.
Definitions.</strong>
</p>
<p>“Account Country” is the country associated with your account.
Your Account Country is the country identified through your IP (Internal Protocol) address.</p>
<p>“Account Information” means information about you that you provide to us in connection with the creation or administration of your account.
For example, Account Information includes names, usernames, phone numbers, email addresses and billing information associated with your account.</p>
<p>“API” means an application program interface.</p>
<p>“Content” means software (including machine images), data, text, audio, video or images.</p>
<p>“Data Controller,” “Data Processor,” and “Data Sub-Processor” shall have the meaning ascribed to them in the European Privacy Laws.</p>
<p>“Documentation” means the user guides communicated to the End User, as such user guides may be updated by Service Provider from time to time.</p>
<p>“End User” means any individual or entity that directly or indirectly through another user: (a) accesses or uses Your Content.
or (b) otherwise accesses or uses the Service Offerings under your account.
The term “End User” does not include individuals or entities when they are accessing or using the Services or any Content under their own Service Provider account, rather than under your account.</p>
<p>“European Privacy Laws” means Regulation (EU) 2016/679 and the General Data Protection Regulation, together with any additional implementation legislation, rules or regulations that are issued by applicable supervisory authorities.</p>
<p>“Feedback” means all suggested improvements to the Service Offerings that you provide to us.</p>
<p>“Governing Laws” means the laws of the State of Massachusetts and the United States.</p>
<p>“Indirect Taxes” means applicable taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax.</p>
<p>“Losses” means any claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees).</p>
<p>“Policies” means the terms and conditions in this Agreement, the Privacy Policy, and any other policy or terms referenced in or incorporated into this Agreement, but does not include other marketing materials referenced on the Service Provider Site.</p>
<p>“Privacy Policy” means the privacy policy located at https://www.arqbackup.com/privacy/ (and any successor or related locations designated by us), as it may be updated by us from time to time.</p>
<p>“Service” means each of the products and services licensed, sold or otherwise made available by us or our affiliates.
Services do not include Third-Party Content.</p>
<p>“Service Attributes” means Service usage data related to your account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics and analytics.</p>
<p>“Service Offerings” means the Services (including associated APIs), the Service Provider Content, and any other product or service provided by us under this Agreement.
Service Offerings do not include Third-Party Content.</p>
<p>“Service Provider Confidential Information” means all nonpublic information disclosed by us, our affiliates, business partners or our or their respective employees, contractors or agents that is designated as confidential or that, given the nature of the information or circumstances surrounding its disclosure, reasonably should be understood to be confidential.
Service Provider Confidential Information includes: (a) nonpublic information relating to our or our affiliates or business partners’ technology, customers, business plans, promotional and marketing activities, finances and other business affairs.
(b) third-party information that we are obligated to keep confidential.
and (c) the nature, content and existence of any discussions or negotiations between you and us or our affiliates.
Service Provider Confidential Information does not include any information that: (i) is or becomes publicly available without breach of this Agreement.
(ii) can be shown by documentation to have been known to you at the time of your receipt from us.
(iii) is received from a third party who did not acquire or disclose the same by a wrongful or tortious act.
or (iv) can be shown by documentation to have been independently developed by you without reference to the Service Provider Confidential Information.</p>
<p>“Service Provider Content” means Content we or any of our affiliates make available in connection with the Services or on the Site to allow access to and use of the Services, including APIs.
WSDLs.
Documentation.
sample code.
software libraries.
command line tools.
proofs of concept.
templates.
and other related technology (including any of the foregoing that are provided by our personnel).
Service Provider Content does not include the Services or Third-Party Content.</p>
<p>“Service Provider Marks” means any trademarks, service marks, service or trade names, logos, and other designations of Service Provider and its affiliates.</p>
<p>“Site” means https://www.arqbackup.com/ (and any successor or related site designated by us), as may be updated by us from time to time.</p>
<p>“Term” means the term of this Agreement described in Section 7.1.</p>
<p>“Termination Date” means the effective date of termination provided in accordance with Section 7, in a notice from one party to the other.</p>
<p>“Third-Party Content” means Content made available to you by any third party on the Site or in conjunction with the Services.</p>
<p>“Your Content” means Content that you or any End User transfers to us for processing, storage or hosting by the Services in connection with your Service Provider account.
For example, Your Content includes Content that you or any End User stores in the Arq Cloud Backup™ Services.
Your Content does not include Account Information.</p>
<p>
<em>For any questions related to this Agreement, the Services, billing and fees, or
password assistance, please contact support@arqbackup.com.</em>
</p>
<p>
<em>Last updated October 16, 2018</em>
</p>