VMSTRATA TERMS OF SERVICE between VMStrata, LLC (“we” or “VMStrata”) and the customer who orders VMStrata services (“you” or “Customer“).
THE AGREEMENT.
Your use of the VMStrataTMservices is governed by these Terms of Service, the terms of your Order, and any documents incorporated by reference in any of these. When we use the term “Agreement” in any of the Order or Terms of Service,we are referring collectively to all of them, and to any other documents that may be incorporated by reference in any of them. If the individual who accepts these Terms of Service or submits an Order does so on behalf of a company or other legal entity, the individual represents that he or she has authority to bind that entity to the Agreement.
This Agreement is the complete and exclusive agreement between you and VMStrata regarding its subject matter and supersedes and replaces any prior agreement, understanding or communication, written or oral.
1. DEFINED TERMS.
Some words used in the Agreement have particular meanings:
“AWS” means the Amazon Web Services S3 storage service.
“Confidential Information” means all information disclosed by one of us to the other, whether before or after the effective date of the Agreement, that the recipient should reasonably understand to be confidential, including: (i) for you, all information transmitted to or from, or stored on, Cloud Files or AWS, (ii) for VMStrata, unpublished prices and other terms of service, audit and security reports, product development plans, data center designs (including non-graphic information you may observe on a tour of a data center), server configuration designs, and other proprietary information or technology, and (iii) for both of us, information that is marked or otherwise conspicuously designated as confidential. Information that is developed by one of us on our own, without reference to the other’s Confidential Information, or that becomes available to one of us other than through violation of the Agreement or applicable law, shall not be “Confidential Information” of the other party.
“Cloud Files” means the cloud storage service.
“Software” means: (i) VMStrata Server Edition, and/or any other software that we may provide to you as part of the Services, and (ii) any updates, bug fixes, and successor versions or revisions that we may provide to you from time to time to supplement or replace any of the foregoing.
“Order” means either: (i) the online purchase order that you submit to VMStrata via the VMStrata website, or (ii) any other written order (either in electronic or paper form) provided to you by VMStrata for signature that describes the Services you are purchasing, and that is signed by you, either manually or electronically.
“Services” means: those services described in the Order, including the right to use the Software described in the Order and AWS and/or Cloud Files storage, and any optional service you may have elected to purchase, plus such support for those services as VMStrata makes available to you.
2. SERVICES
Contingent on VMStrata’s acceptance of your Order, and subject to the terms of the Agreement, you may use the Services described in an Order for the term of the Order. You may access Cloud Files and AWS only via the user interface that is included with the Software, or other means that VMStrata may make available to you.
3. WHO MAY USE THE SERVICES
If you have purchased the VMStrata Server Edition of the Services, only you and/or your employees or other agents may use the Services, you may also authorize individuals other than your employees or agents to use the Services via the workgroup subaccounts, but you may create a workgroup subaccount only for individual, natural persons and not for a business entity or other organization. VMStrata is not obligated to provide support to your workgroup subaccount users, but may do so in its discretion. You may not resell the Services unless you have been approved as a VMStrata reseller and have executed a reseller addendum to these Terms of Service. There are no third party beneficiaries to the Agreement, meaning that third parties do not have any rights against either of us under the Agreement.
4. ENCRYPTION
The Software allows you to encrypt your files, both in transit to and from Cloud Files and AWS, and while stored. VMStrata is not liable for any harm resulting from a data breach or other unauthorized use or disclosure of files that were not encrypted using the Software.
5. ADDITIONAL LICENSE TERMS FOR VMStrata SOFTWARE
The Software is licensed not sold. You may use the machine readable version of the Software only in connection with your use of Cloud Files or AWS.
5.1 Per User
You may authorize use of the Software only by that number of users stated in your Order. Each user must be an individual, natural person, and not a business entity or organization. Each authorized individual may install and use the Software on as many computers as he or she wishes, but a license for a single user may not be shared by two or more individuals. You may permanently transfer authorization to use the Software to a new individual user within your organization.
5.2 Per Server
You may use the VMStrata Server Edition on that number of servers stated in your Order. You may use the management software for the VMStrata Server Edition on as many computers as you wish.
5.3 Other License Terms.
You may use any documentation included with the Software or otherwise provided to you by VMStrata, such as Help Files and FAQ, only in connection with your use of the Software. You may not copy the documentation except as reasonably incident to your use of the Software as permitted by this Agreement. You may not assign, sublicense or transfer the Software, any documentation, or the license for the Software or documentation. You may not remove, modify or obscure any copyright, trademark or other proprietary rights notices that appear on the Software or documentation. Unless permitted by the terms of an open source software license, you may not reverse engineer, decompile or disassemble the Software except and to the extent that you are expressly permitted by applicable law to do this, and then following at least ten days advance written notice to VMStrata. You must promptly begin using any updated version or new version of the Software that VMStrata provides, and you may not use any prior version after the time that the new or updated version is installed. VMStrata may revoke or terminate this license at any time without liability, except that if VMStrata revokes or terminates the license prior to the expiration or termination of the Agreement, and does not provide you with substitute software that enables you to effectively use the Service, VMStrata shall refund any prepaid fees for the unused portion of the term of your Agreement for the Services. You may not use the Services or the Software in any nuclear, aviation, mass transit or medical application or in any other inherently dangerous applications. You acknowledge that the Software includes a reporting feature that will report usage information (but not the content of your files) to VMStrata via the Internet. VMStrata will use this information only for the purpose of verifying your compliance with the terms of this Agreement. If you use the VMStrata Workgroup Edition, the Software will require your end users to accept legal terms as a condition to installation. You may not attempt to interfere with or disable this feature, and you may not modify these terms via any separate agreement with your end users. VMStrata retains all rights in the Software except for the rights expressly granted in this Section. Restricted Rights: If the Services are paid for with United States federal government funds or are intended for use within or for any United States federal agency, the Software is provided with “Restricted Rights” as defined in DFARS 252.227-7013, Rights in Technical Data and Computer Software and FAR 52.227-14, Rights in Data-General, including Alternate III, as applicable. You must notify VMStrata in advance if you are a federal government entity or are using federal government funds to pay for your use of the Service.
6. YOUR OBLIGATIONS
You agree to do each of the following: (i) comply with applicable law, (ii) pay the fees due for the Services within 30 days of receipt of VMStrata’s invoice, (iii) use reasonable security precautions in light of your use of the Services, including encrypting any sensitive information by using the encryption feature of the Software, or other encryption method of equal or better strength (iv) cooperate with VMStrata’s reasonable investigation of outages and security problems , (v) keep your billing contact and other account information up to date; (vi) promptly notify VMStrata of any unauthorized use of your account or any other breach of security; (vii) comply with our reasonable restrictions on the total size of files or objects.
7. TERM.
The initial term for each Order begins on the date we make the Services described in the Order available for your use and continues for the period stated in the Order. If no period is stated in the Order, then the initial term shall be one month. Upon expiration of the initial term, the Order will automatically renew for successive renewal terms of one month, unless and until one of us gives the other a written notice of termination at least thirty (30) days prior to the expiration of the initial term, or then-current renewal term, as applicable.
8. FEES.
VMStrata will charge you the recurring and non-recurring fees described in your Order. You may use VMStrata for the number of servers and sockets stated in your order. Unless you have made other arrangements, VMStrata will invoice as follows: (i) for recurring fees, either in advance on or around the first day of each billing cycle, or, at VMStrata’s option, in arrears with your non-recurring fees; and (ii) for non-recurring fees (such as storage) on or around the date incurred, or on or around the first day of the billing cycle that follows the date incurred, at VMStrata’s option. Unless otherwise agreed in the Order, your billing cycle will be monthly, beginning on the date that VMStrata first makes the Services available to you. VMStrata may suspend all services (including services provided pursuant to any unrelated Order or other agreement we may have with you) if payment is not made for any reason. VMStrata may charge interest on overdue amounts at 1.5% per month (or the maximum legal rate if it is less than 1.5%). If any amount is overdue by more than thirty (30) days and VMStrata brings a legal action to collect, you must also pay VMStrata’s reasonable costs of collection, including attorney fees and court costs. All fees are stated and will be charged in US Dollars. Charges that are not disputed within sixty (60) days of the date charged are conclusively deemed accurate. You must provide VMStrata with accurate factual information to help VMStrata determine if any tax is due with respect to the provision of the Services and if VMStrata is required by law to collect taxes on the provision of the Services, you must pay VMStrata the amount of the tax that is due or provide satisfactory evidence of your exemption from the tax. VMStrata may, at its option, require you to make payments through a third party billing service.
9. FEE INCREASES
We may reasonably increase the fees for AWS storage on as few as ten (10) days advance notice if and to the extent Amazon Web Services increases its fees charged to VMStrata.
10. SUSPENSION.
We may suspend your Services without liability if: (i) we reasonably and in good faith believe that the Services are being used in violation of the Agreement; (ii) you don’t cooperate with our reasonable investigation of any suspected violation of the Agreement; (iii) we reasonably believe that your Services have been accessed or manipulated by a third party without your consent, or (iv) as required by law. We will give you reasonable advance notice of a suspension under this paragraph and a chance to cure the grounds on which the suspension is based, unless we determine in our reasonable commercial judgment that a suspension on shorter or contemporaneous notice is necessary to protect VMStrata or its other customers from imminent and significant operational or security risk. If the suspension was based on your breach of your obligations under the Agreement, then we will suspend charging you the fees for the Services during the suspension, but may charge you a reasonable reinstatement fee (not to exceed $150) upon reinstatement of the Services.
11. TERMINATION FOR CONVENIENCE.
You may terminate the Agreement for convenience at any time by giving us a written notice or closing your account via our online account closing process. We will not refund any prepaid portion of the fees for the Services if you terminate for convenience, and we will charge the usage fees through the effective date of termination. We may terminate this Agreement for convenience at any time on at least thirty (30) days advance written notice.
12. TERMINATION FOR BREACH.
We may terminate the Agreement for breach on written notice if: (i) we discover that the information you provided to us about yourself or your proposed use of the Services was materially inaccurate or incomplete, or we determine, in our reasonable discretion, that there is evidence of fraud in connection with your Services, (ii) if you are an individual, you were not at least 18 years old or otherwise did not have the legal capacity to enter into the Agreement at the time you submitted the Order for Services, or if you are an entity or fiduciary, the individual submitting the Order for Services did not have the legal right or authority to enter into the Agreement on behalf of the person represented to be the customer, (iii) your payment of any invoiced amount is overdue and you do not pay the overdue amount within five (5) days of our written notice, (iv) a credit report indicates you no longer meet our reasonable credit criteria, provided that if we terminate on these grounds we must give you a reasonable opportunity to migrate your files from AWS or Cloud Files in an orderly fashion; (v) you use your Service in violation of the terms, or (vi) you fail to comply with any other provision of the Agreement and do not remedy the failure within thirty (30) days of our notice to you describing the failure. If we fail to provide the Services in breach of this Agreement, then we will refund you the fees for those Services for the period that we were in breach, provided that the refund will not exceed one month of fees for the Services.
You may terminate the Agreement for breach on written notice if:
(i) we materially fail to provide the Services as agreed and do not remedy that failure within ten (10) days of your written notice describing the failure, or (ii) we materially fail to meet any other obligation stated in the Agreement and do not remedy that failure within thirty (30) days of your written notice describing the failure.
13. ACCESS TO DATA/BACK UPS. You will not have access to your data stored on Cloud Files or AWS during a suspension or following termination.
You agree to keep a current and reliable copy of all your stored files. VMStrata has no obligation to help you recover files that you or your users may inadvertently delete or corrupt.
14. RESPONSIBLIITY FOR USE OF THE SERVICES.
You are responsible to VMStrata for the violation of the Agreement or the Terms for Workgroup Subaccounts by any employee or agent of yours, your workgroup members, any other person to whom you have given access to the Services, and any person who gains access to your files or the Services as a result of your failure to use reasonable security precautions, to the same extent as if you had commited the violation yourself, even if such violation was not authorized by you. You are responsible to VMStrata for any fees arising from the use of the Services by any of these persons, even if that use was not authorized by you.
15. WARRANTY AND WARRANTY DISCLAIMERS.
We warrant that the Services and the Software will conform to the documentation we provide either online or with the Software. Customer’s sole and exclusive remedy for our breach of this warranty will be a refund of the fees for the billing period during which you notified us of your warranty claim.
We do not promise that the Services will be uninterrupted, error-free, or completely secure. You acknowledge that there are risks inherent in Internet connectivity that could result in the loss of your privacy, Confidential Information, and property. We disclaim any and all warranties not expressly stated in the Agreement including the implied warranties of merchantability, fitness for a particular purpose, and noninfringement. You are solely responsible for the suitability of the service chosen. Any voluntary services we may perform for you at your request and without any additional charge are provided on an AS IS basis.
16. EXPORT MATTERS.
You represent and warrant that you are not on the United States Department of Treasury, Office of Foreign Asset Controls list of Specially Designated National and Blocked Persons and are not otherwise a person to whom VMStrata is legally prohibited to provide the Services. You may not use the Services for the development, design, manufacture, production, stockpiling, or use of nuclear, chemical or biological weapons, weapons of mass destruction, or missiles, in a country listed in Country Groups D: 4 and D: 3, as set forth in Supplement No. 1 to the Part 740 of the United States Export Administration Regulations, nor may you provide access to the Service to any person (including any natural person or government or private entity ) that is located in or is a national of any country that is embargoed or highly restricted under United States export regulations. The Software contains “strong encryption” that is controlled for export by United States law and the laws of other countries.
17. CONFIDENTIAL INFORMATION.
Each of us agrees not to use the other’s Confidential Information except in connection with the performance or use of the Services, as applicable, the exercise of our respective legal rights under the Agreement, or as may be required by law. Each of us agrees not to disclose the other’s Confidential Information to any third person except as follows:
(i) to our respective service providers, agents and representatives, provided that such service providers, agents or representatives agree to confidentiality measures that are at least as stringent as those stated in these Terms of Service.
(ii) to law enforcement or government agency if required by a subpoena or other compulsory legal process, or if either of us reasonably believes, in good faith, that the Confidential Information reflects conduct that may violate applicable law;
(iii) as required by law; or
(iv) in response to a subpoena or other compulsory legal process, provided that each of us agrees to give the other written notice of at least seven days prior to disclosing Confidential Information under this subsection (or prompt notice in advance of disclosure, if seven days advance notice is not reasonably feasible), unless the law forbids such notice.
18. LIMITATION ON DAMAGES.
Neither of us (nor any of our employees, agents, affiliates or suppliers) is liable to the other for any lost profits or any other indirect, special, incidental or consequential loss or damages of any kind, or for any loss that could have been avoided by the damaged party’s use of reasonable diligence, even if the party responsible for the damages has been advised or should be aware of the possibility of such damages. In no event shall either of us be liable to the other for any punitive damages.
VMStrata’s liability for Cloud Files or AWS downtime shall not exceed an amount equal to your fees for Cloud Files or AWS storage for the billing period during which the downtime occurred.
Notwithstanding anything in the Agreement to the contrary, except for liability based on willful misconduct or fraudulent misrepresentation, and liability for death or personal injury resulting from VMStrata’s negligence, the maximum aggregate monetary liability of VMStrata and any of its employees, agents, suppliers, or affiliates in connection with the Services, the Software, the Agreement, and any act or omission related to the Services, the Software, or the Agreement, under any theory of law (including breach of contract, tort, strict liability, and infringement) shall not exceed the amount paid for the Services that are the subject of the claim during the 12 months prior to the occurrence of the events giving rise to the claim.
19. INDEMNIFICATION.
If we, our affiliates, or any of our or their respective employees, agents, or suppliers (the “VMStrata Indemnitees”) is faced with either: (i) a legal claim by a third party arising out of your actual or alleged gross negligence, willful misconduct, violation of law, failure to meet the security obligations required by the Agreement or violation of Section 16 (Export Matters) of these Terms of Service, or (ii) any legal claim by your authorized workgroup member, then you will pay the cost of defending the claim (including reasonable attorney fees) and any damages award, fine or other amount that is imposed on the VMStrata Indemnitees as a result of the claim. Your obligations under this subsection include claims arising out of the acts or omissions of your employees, any other person to whom you have given access to the Services, and any person who gains access to the Services as a result of your failure to use reasonable security precautions, even if the acts or omissions of such persons were not authorized by you. We will choose legal counsel to make decisions regarding the defense of the claim, provided that these decisions must be reasonable and must be promptly communicated to you. We may not settle the claim without your consent, although such consent may not be unreasonably withheld. You must pay expenses due under this Section 19 as we incur them.
20. NOTICES.
Your routine communications regarding the Services should be sent to your VMStrata account team using your VMStrata support portal. If you want to give us a notice regarding termination of the Agreement for breach, indemnification, or other non-routine legal matter, you must give such notice in writing and send it by first class United States mail to:
General Counsel
VMStrata
PO Box 34628 #70240
Seattle, WA 98124-1628
Confidential
VMStrata’s routine communications regarding the Services will be sent to the individual(s) you designate as your contact(s) on your account either by electronic mail, United States mail, or overnight courier.
Notices are deemed received as of the time delivered, or if that time does not fall within a business day, as defined below, as of the beginning of the first business day following the time delivered. For purposes of counting days for notice periods, the business day on which the notice is deemed received counts as the first day. Notices must be given in the English language.
21. OWNERSHIP OF INTELLECTUAL PROPERTY
Each of us retains all right, title and interest in and to our respective trade secrets, inventions, copyrights, and other intellectual property. Any intellectual property developed by VMStrata during the performance of the Services shall belong to VMStrata unless we have agreed with you in advance in writing that you shall have an interest in the intellectual property.
22. ASSIGNMENT/SUBCONTRACTORS
You may not assign the Agreement or sublicense the Software without VMStrata’s prior written consent. We may assign the Agreement in whole or in part as part of a corporate reorganization or a sale of our business, and we may transfer your Confidential Information as part of any such transaction. VMStrata may use third party service providers to perform all or any part of the Services, but VMStrata remains responsible to you under this Agreement for work performed by its third party service providers to the same extent as if VMStrata performed the Services itself.
23. FORCE MAJEURE
Neither of us will be in violation of the Agreement if the failure to perform the obligation is due to an event beyond our control, such as significant failure of a part of the power grid, significant failure of the Internet, natural disaster, war, riot, insurrection, epidemic, strikes or other organized labor action, terrorism, or other events of a magnitude or type for which precautions are not generally taken in the industry.
24. GOVERNING LAW, LAWSUITS
The Agreement is governed by the laws of the State of New York, exclusive of any New York choice of law principle that would require the application of the law of a different jurisdiction, and the laws of the United States of America, as applicable. The Agreement shall not be governed by the United Nations Convention on the International Sale of Goods.
Each of us agrees that we will not bring a claim under the Agreement more than two years after the time that the claim accrued.
25. EVALUATION USE OF SERVICES
If VMStrata authorizes your use of the Services without charge on an evaluation or trial basis, then notwithstanding anything to the contrary herein, VMStrata provides the evaluation Services “AS IS” with no representation or warranty. You must stop using the Services at the end of your designated trial period or any time that VMStrata revokes your trial use rights.
26. BETA SERVICES.
If you elect to participate in any beta test of a VMStrata Service (a “Beta Service“), then your use of the Beta Service is subject to the following additional terms:
i. you acknowledge that the Beta Service is a pre-release version and may not work properly;
ii. you acknowledge that your use of the Beta Service may expose you to
unusual risks of operational failures;
iii. you should not use the pre-release version of the Beta Service in a live production environment;
Confidential
iv. we may terminate the Beta Service at any time, in our sole discretion;
v. the commercially released version of the Beta Service may change substantially from the pre-release version and programs that use or run with the pre-release version may not work the commercial release or subsequent releases.
vi. you agree to provide prompt feedback regarding your experience with the Beta Service in a form reasonably requested by us, including information necessary to enable us to duplicate errors or problems you experience. You agree that we may use your feed back for any purpose, including product development purposes. At our request you will provide us with comments that we may use publicly for press materials and marketing collateral. Any intellectual property inherent in your feedback or arising from your testing of the service shall be owned exclusively by VMStrata.
vii. you agree that all information regarding your beta test, including your experience with and opinions regarding the Beta Service, is “Confidential Information” of VMStrata as defined in these Terms of Service and may not be disclosed to a third party or used for any purpose other than providing feedback to VMStrata.
viii. the Beta Service is provided “
AS IS” with no warranty whatsoever.
ix. to the extent permitted by applicable law, VMStrata disclaims any and all warranties with respect to the Beta Service including the implied warranties of merchantability, fitness for a particular purpose, and non-infringement;
x. the maximum aggregate liability of VMStrata and any of its employees, agents, affiliates, or suppliers, under any theory of law (including breach of contract, tort, strict liability, and infringement) for harm to you arising from your use of the Beta Service shall be a payment of money not to exceed Fifty Dollars ($50.00).
27. SOME AGREEMENT MECHANICS
If these Terms of Service are incorporated in your Order by reference to a page on the VMStrata website and we revise the Terms of Service posted on that page, those revisions will not be effective as to an Order that we accepted prior to the date we posted the revision until the first day of the renewal period that follows the effective date of the amendment by at least thirty days. However, if over time you sign multiple Orders for a single account, then the Terms of Service posted on the effective date of the latest Order will govern the entire account. Any Terms of Service that you accept as part of the installation of a new version of or update to the Software shall supersede and replace these terms of service in their entirety. VMStrata may accept or reject any Order you submit in its sole discretion. VMStrata’s provisioning of the Services described in an Order shall constitute VMStrata’s acceptance of the Order.
An Order may be amended by a formal written agreement signed by both parties, or by an exchange of correspondence, including electronic mail that includes the express consent of an authorized individual for each of us. Any such correspondence that adds or modifies Services in connection with an account established by an Order shall be deemed to be an amendment to that Order, notwithstanding the fact that the correspondence does not expressly refer to the Order.
Other than as stated herein, the Agreement may be modified only by a formal document signed by both parties.
If there is a conflict between the terms of any of the documents that comprise the Agreement, the documents will govern in the following order: Order, Terms of Service. If any part of the Agreement is found unenforceable by a court or other tribunal, the rest of the Agreement will nonetheless continue in effect and we agree that the tribunal may reform the unenforceable part if it is possible to do so consistent with the material economic incentives of the parties resulting in this Agreement. Each of us may enforce each of our respective rights under the Agreement even if we have waived the right or failed to enforce the same or other rights in the past. Our relationship is that of independent contractors and not business partners. Neither of us is the agent for the other, and neither of us has the right to bind the other on any agreement with a third party. The captions in the Agreement are for convenience only and are not part of the Agreement. The use of the word “including” in the Agreement shall be read to mean “including without limitation.” Sections 14, 17, 18, 19, 21, and 24 of these Terms of Service and all other provisions that by their nature are intended to survive expiration or termination of the Agreement shall survive expiration or termination of the Agreement.
If you have made any change to the Agreement documents that you did not bring to our attention in a way that is reasonably calculated to put us on notice of the change, the change shall not become part of the Agreement.
Facsimile signatures, signatures on an electronic image (such as .pdf or .jpg format), and electronic signatures shall be deemed to be original signatures.
© 2014 VMStrata
February 27, 2014 revision
