BACKUPMOXIE TERMS OF SERVICE
Please read the following terms and conditions carefully. BackupMoxie, LLC ("BackupMoxie") provides the BackupMoxie website located at backupmoxie.com (the "Site") and the related data backup services ("Services"). These BackupMoxie Terms of Service ("Terms of Service") and all policies referenced in this document or elsewhere on the Site which are incorporated herein by reference are a legal agreement between you and BackupMoxie and apply to you whether you are a visitor to the Site or a user who has purchased a BackupMoxie account ("BackupMoxie User").
YOU UNDERSTAND THAT BY USING THE SITE, SERVICES OR YOUR BACKUPMOXIE ACCOUNT YOU ARE AGREEING TO BE BOUND BY THESE TERMS OF SERVICE. IF YOU DO NOT ACCEPT THESE TERMS OF SERVICE IN THEIR ENTIRETY, YOU MAY NOT ACCESS OR USE THE SITE OR THE SERVICES. IF YOU AGREE TO THESE TERMS OF SERVICE ON BEHALF OF A BUSINESS, YOU REPRESENT AND WARRANT THAT YOU HAVE THE AUTHORITY TO BIND THAT BUSINESS TO THESE TERMS OF SERVICE AND YOUR AGREEMENT TO THESE TERMS WILL BE TREATED AS THE AGREEMENT OF THE BUSINESS. IN THAT EVENT, "YOU" AND "YOUR" REFER HEREIN TO THAT BUSINESS.
As a BackupMoxie User you consent to the use of: (a) electronic means to complete these Terms of Service and to provide you with any notices given pursuant to these Terms of Service; and (b) electronic records to store information related to these Terms of Service, your use of the Site and Services.
MODIFICATION OF THE SITE OR TERMS OF SERVICE
BackupMoxie reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Site or Services or to modify or terminate these Terms of Service without advance notice. Modifications to these Terms of Service or any policies will be posted on the Site or made in compliance with any notice requirements set forth in these Terms of Service. If any modification is not acceptable to you, your only recourse is to cease using the Site and Services. By continuing to use the Site or Services after BackupMoxie has posted any modifications on the Site or provided any required notices, you accept and agree to be bound by the modifications.
FEES AND BILLING
Fees. Please see http://backupmoxie.com/pricing for the rates at which the Services can be purchased which are incorporated herein by reference.
Payment. All Service Fees are billed in advance on a monthly basis starting from the date the BackupMoxie User signed up for an account. If you sign up for the Service on the last day of any particular month (recognizing that not all months have the same number of days), your billing cycle start date will be the last day of each succeeding month.
All fees are non-refundable. No prorated refunds, credits or upgrade or downgrade related refunds will be provided under any circumstances. You agree to pay BackupMoxie for all charges at the prices then in effect for use of the Services by you or other persons (including your agents) using your BackupMoxie account, and you hereby authorize BackupMoxie to collect fees by charging the credit card you provide to us as part of your BackupMoxie account information or otherwise, either directly or indirectly, via a third party online payment service.
The Services may include sales tax based on the bill-to address and the sales tax rate in effect at the time your transaction is completed. You will be responsible for, and will promptly pay, all taxes and duties of any kind (including but not limited to sales, use and withholding taxes) associated with your receipt or use of the Services.
Upgrading/Downgrading. BackupMoxie Users that wish to upgrade or downgrade their service plans can do so by emailing our billing department at firstname.lastname@example.org. You may request an upgrade or downgrade at any time subject to the following terms and conditions:
Upgrading. BackupMoxie Users pay a prorated increase in their Service Fee for the remaining time in the billing cycle in which the upgrade is initiated.
Downgrading. Downgrades for any type of service plan do not take effect until the next billing cycle (monthly or annual) after the downgrade is initiated. Downgrading your service plan may cause loss of features or functionality.
TERMINATION OR CANCELLATION OF THE SITE OR SERVICES
Without limiting other remedies, BackupMoxie reserves the right in its sole discretion, at any time, to modify, discontinue or terminate the Site or Services or to modify or terminate these Terms of Service without advance notice. Modifications to these Terms of Service or any policies will be posted on the Site or made in compliance with any notice requirements set forth in this Agreement. If any modification is not acceptable to you, your only recourse is to cease using the Site and Services. By continuing to use the Site or Services following any posting of a new Terms of Service or other policies on the Site, you accept and agree to be bound by the new term or policies. In addition, BackupMoxie may notify authorities or take any actions it deems appropriate, without notice to you, if BackupMoxie suspects or determines, in its own discretion, that you may have or there is a significant risk that you have (i) failed to comply with any provision of these Terms of Service or any policies or rules established by BackupMoxie; or (ii) engaged in actions relating to or in the course of using the Site or Services that may be illegal or cause liability, harm, embarrassment, harassment, abuse or disruption for you, BackupMoxie Users, BackupMoxie, any other third parties or the Site or Services.
Subject to the section titled "Fees and Billing", you may terminate your BackupMoxie account at any time and for any reason. Upon any termination by a BackupMoxie User, the related account will no longer be accessible.
Any suspension, termination or cancellation will not affect your obligations to BackupMoxie under these Terms of Service (including, without limitation, the rights granted by you to BackupMoxie, indemnification and limitation of liability), which by their sense and context are intended to survive such suspension, termination or cancellation. After any termination, you understand and acknowledge that we will have no further obligation to provide the Site or Services and all licenses and other rights granted to you by these Terms of Service will immediately cease. BackupMoxie will not be liable to you or any third party for termination of the Site or Services or termination of your use of either. UPON ANY TERMINATION OR SUSPENSION, ANY CONTENT, MATERIALS OR INFORMATION (INCLUDING USER FILES) WHICH IS RELATED TO YOUR ACCOUNT MAY NO LONGER BE ACCESSED BY YOU. Furthermore, BackupMoxie will have no obligation to maintain any information stored in the data centers related to your account or to forward any information to you or any third party.
"User Files" means the information contained in the files that you backup through the Site and Services.
"BackupMoxie Content" means, collectively, the text, data, graphics, images, BackupMoxie trademarks and logos and other content made available through the Site and Services, excluding User Files.
While you retain all rights in any User Files, by using Site or Services, you hereby grant to BackupMoxie a non-exclusive, worldwide, royalty-free, sublicensable, perpetual and irrevocable right and license to use such User Files, as necessary to provide you with the Services. You represent and warrant that you own or have the necessary licenses, rights, consents and permissions to grant the foregoing licenses to BackupMoxie. You acknowledge and agree that your use of the Site and Services will comply with our Copyright and IP Policy as set forth in the section below titled "Copyrighted Materials: No Infringing Use"
You acknowledge and agree that BackupMoxie may, at its option, establish limits concerning User Files, including, without limitation, the maximum number of days that User Files will remain available via the Services or on the Site, the maximum size of any files that may be stored on or uploaded to the Site or Services and the maximum disk space that may be allotted to you for the storage of User Files on BackupMoxie's servers.
Disclaimer. You acknowledge that BackupMoxie does not have any obligation to monitor the Site, User Files or User Posts (defined below) for any purpose, but has the right to do so for the purpose of operating the Site and the Services, to ensure users' compliance with these Terms of Service, or to comply with applicable law or the order or requirement of a court, administrative agency or other governmental body. Notwithstanding, BackupMoxie is not responsible for the accuracy, completeness, appropriateness, legality or applicability of User Files or anything said, depicted or written by users in their User Posts, including without limitation, any information obtained by using the Site or Services. BackupMoxie does not endorse anything contained in User Files or User Posts or any opinion, recommendation or advice expressed therein and you agree to waive, and hereby do waive, any legal or equitable rights or remedies you have or may have against BackupMoxie with respect thereto.
BackupMoxie will have the right to investigate and prosecute violations of these Terms of Service, including Intellectual Property Rights (defined below) infringement and Site security issues, to the fullest extent of the law. BackupMoxie may involve and cooperate with law enforcement authorities in prosecuting users who violate these Terms of Service.
BACKUPMOXIE CONTENT AND FEEDBACK
BackupMoxie and its licensors own all right, title and interest, including all worldwide intellectual property rights in the Site, Services, BackupMoxie Content and any other content made available through the Site or Services contained therein, other than your User Files. You will not remove, alter or conceal any copyright, trademark, service mark or other proprietary rights notices incorporated in or accompanying the Site, Services, BackupMoxie Content, any other content made available through the Site or Services or related products and services, and except as explicitly described herein, you will not reproduce, modify, adapt, prepare derivative works based on, perform, display, publish, distribute, transmit, broadcast, sell, license or otherwise exploit the Site, Services, BackupMoxie Content or any other content made available through the Site or Services (other than your User Files).
All feedback, comments, and suggestions for improvements (the "Feedback") that you provide to BackupMoxie, in any form, and any contributions you make to the Site by posting BackupMoxie Content and communicating with other BackupMoxie Users via posts to forums on the site ("User Posts") will be the sole and exclusive property of BackupMoxie. You hereby irrevocably transfer and assign to BackupMoxie and agree to irrevocably assign and transfer to BackupMoxie all of your right, title, and interest in and to all of your Feedback and User Posts, including all worldwide patent rights (including patent applications and disclosures), copyright rights, trade secret rights, and other intellectual property rights (collectively, the "Intellectual Property Rights") therein. At BackupMoxie's request and expense, you will execute documents and take such further acts as BackupMoxie may reasonably request to assist BackupMoxie in acquiring, perfecting and maintaining its Intellectual Property Rights and other legal protections for your Feedback and User Posts. You will not earn or acquire any rights or licenses in the Site, BackupMoxie Content, and Services or in any BackupMoxie Intellectual Property Rights on account of these Terms of Service or your performance under these Terms of Service.
The Site and Services may be used and accessed for lawful purposes only. You agree to abide by all applicable local, state, national and foreign laws, treatises and regulations in connection with your use of the Site and Services. In addition, without limitation, you agree that you will not do any of the following while using or accessing the Site, Services, BackupMoxie Content or User Files:
1. Post, publish or transmit any text, graphics, or material that: (i) is false or misleading; (ii) is defamatory; (iii) invades another's privacy; (iv) is obscene, pornographic, or offensive; (v) promotes bigotry, racism, hatred or harm against any individual or group; (vi) infringes another's rights, including any Intellectual Property Rights; or (vii) violates, or encourages any conduct that would violate, any applicable law or regulation or would give rise to civil liability;
2. Access, tamper with, or use any non-public areas of the Site, BackupMoxie's computer systems, or the technical delivery systems of BackupMoxie's providers;
3. Attempt to probe, scan, or test the vulnerability of any system or network or breach any security or authentication measures;
4. Attempt to access or search the Site, BackupMoxie Content, Services or User Files with any engine, software, tool, agent, device or mechanism other than the software and/or search agents provided by BackupMoxie or other generally available third-party web browsers (such as Microsoft Internet Explorer or Mozilla Firefox), including but not limited to browser automation tools.
5. Send unsolicited email, junk mail, "spam," or chain letters, or promotions or advertisements for products or services;
6. Forge any TCP/IP packet header or any part of the header information in any email or newsgroup posting, or in any way use the Site, BackupMoxie Content, Services or User Files to send altered, deceptive or false source-identifying information;
7. Attempt to decipher, decompile, disassemble or reverse engineer any of the software used to provide the Site, BackupMoxie Content, Services or User Files;
8. Interfere with, or attempt to interfere with, the access of any user, host or network, including, without limitation, sending a virus, overloading, flooding, spamming, or mail-bombing the Site; or plant malware on BackupMoxie's computer system, those systems of BackupMoxie's providers, or otherwise use the Site, BackupMoxie Content, Services or User Files to attempt to distribute malware;
9. Impersonate or misrepresent your affiliation with any person or entity;
10. Encourage or authorize any third party to engage in any of the forgoing prohibited activities.
COPYRIGHTED MATERIALS: NO INFRINGING USE
You will not use the Site or Services to offer, display, distribute, transmit, route, provide connections to or store any material that infringes copyrighted works or otherwise violates or promotes the violation of the intellectual property rights of any third party. BackupMoxie has adopted and implemented a policy that provides for the termination in appropriate circumstances of the accounts of users who repeatedly infringe or are believed to be or are charged with repeatedly infringing the rights of copyright holders.
LINKS TO THIRD PARTY SITES
The Site may contain links to third-party websites or resources. You acknowledge and agree that BackupMoxie is not responsible or liable for: (i) the availability or accuracy of such websites or resources; or (ii) the BackupMoxie Content, products, or services on or available from such websites or resources. Links to such websites or resources do not imply any endorsement by BackupMoxie of such websites or resources or the BackupMoxie Content, products, or services available from such websites or resources. You acknowledge sole responsibility for and assume all risk arising from your use of any such websites or resources.
RESPONSIBILITY TO PROVIDE SERVER LOGIN DATA
It is your responsibility to provide BackupMoxie with current, accurate, and complete login information to servers containing the User Files that will allow BackupMoxie to provide the Services. BackupMoxie is not responsible for any deficiency or error in the Services due to inaccurate, incomplete login information. Also, you acknowledge that if your server is offline or unreachable for any reason, BackupMoxie will not be able to provide the Services.
USE OF THE SITE AT YOUR OWN RISK
Your access to and use of the Site, BackupMoxie Content, Services, and User Files is at your own risk. BackupMoxie will have no responsibility for any harm to your computer system, loss of data, or other harm that results from your access to or use of the Site, BackupMoxie Content, Services, or User Files.
BACKUPMOXIE IS AVAILABLE "AS-IS"
THE SITE, BACKUPMOXIE CONTENT, SERVICES, OR USER FILES ARE PROVIDED "AS IS", WITHOUT WARRANTY OR CONDITION OF ANY KIND, EITHER EXPRESS OR IMPLIED. WITHOUT LIMITING THE FOREGOING, BACKUPMOXIE EXPLICITLY DISCLAIMS ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE OR NON-INFRINGEMENT AND ANY WARRANTIES ARISING OUT OF COURSE OF DEALING OR USAGE OF TRADE.
BACKUPMOXIE MAKES NO WARRANTY THAT THE SITE, BACKUPMOXIE CONTENT, SERVICES, OR USER FILES WILL MEET YOUR REQUIREMENTS OR BE AVAILABLE ON AN UNINTERRUPTED, SECURE, OR ERROR-FREE BASIS. BACKUPMOXIE MAKES NO WARRANTY REGARDING THE QUALITY OF ANY PRODUCTS, SERVICES, OR INFORMATION PURCHASED OR OBTAINED THROUGH THE SITE, BACKUPMOXIE CONTENT, OR SERVICES, OR THE ACCURACY, TIMELINESS, TRUTHFULNESS, COMPLETENESS OR RELIABILITY OF ANY INFORMATION OBTAINED THROUGH THE SITE, BACKUPMOXIE CONTENT, SERVICES, OR USER FILES.
NO ADVICE OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED FROM BACKUPMOXIE OR THROUGH THE SITE, BACKUPMOXIE CONTENT, SERVICES, USER FILES OR USER FILES, WILL CREATE ANY WARRANTY NOT EXPRESSLY MADE HEREIN.
You agree to defend, indemnify, and hold BackupMoxie, its officers, managers, members, employees and agents, harmless from and against any claims, liabilities, damages, losses and expenses, including, without limitation, reasonable attorneys' fees and costs, arising out of or in any way connected with: (i) your access to or use of the Site, Services, BackupMoxie Content, and/or User Files; (ii) your violation of these Terms of Service; (iii) your violation of any third party right, including without limitation any intellectual property right, including but not limited to right of attribution, publicity, confidentiality, property or privacy right; or (iv) any claim that User Files caused damage to a third party, including without limitation claims that User Files are infringing.
LIMITATION OF LIABILITY
IN NO EVENT WILL BACKUPMOXIE BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR DAMAGES OF ANY KIND, INCLUDING, WITHOUT LIMITATION, DIRECT, SPECIAL, INCIDENTAL, PUNITIVE OR CONSEQUENTIAL DAMAGES (INCLUDING LOSS OF USE, DATA, BUSINESS OR PROFITS) ARISING OUT OF OR IN CONNECTION WITH THESE TERMS OF SERVICE, OR FROM YOUR ACCESS TO OR USE OF, OR INABILITY TO ACCESS OR USE, THE SITE, BACKUPMOXIE CONTENT, SERVICES, OR USER FILES, OR FOR ANY ERROR OR DEFECT IN THE SITE, BACKUPMOXIE CONTENT, SERVICES, OR USER FILES, WHETHER SUCH LIABILITY ARISES FROM ANY CLAIM BASED UPON CONTRACT, WARRANTY, TORT (INCLUDING NEGLIGENCE), STRICT LIABILITY OR OTHERWISE, OR ANY OTHER LEGAL THEORY, WHETHER OR NOT BACKUPMOXIE HAS BEEN INFORMED OF THE POSSIBILITY OF SUCH DAMAGE, EVEN IF A REMEDY SET FORTH HEREIN IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE. IN ANY CASE, BACKUPMOXIE'S AGGREGATE LIABILITY TO YOU ARISING WITH RESPECT TO THIS AGREEMENT WILL NOT EXCEED $50. Some jurisdictions do not allow the limitation or exclusion of liability for incidental or consequential damages, so the above limitation or exclusion may not apply to you.
No Assignment. You will not assign these Terms of Service or assign any rights or delegate any obligations hereunder, in whole or in part, whether voluntarily or by operation of law, without the prior written consent of BackupMoxie. Any purported assignment or delegation by you without the appropriate prior written consent of BackupMoxie will be null and void. BackupMoxie may assign these Terms of Service or any rights hereunder without your consent.
Force Majeure. BackupMoxie will not be liable hereunder by reason of any failure or delay in the performance of its obligations hereunder on account of events beyond its reasonable control, which may include, without limitation, denial-of-service attacks, strikes, shortages, riots, insurrection, fires, flood, storm, explosions, acts of God, war, terrorism, governmental action, labor conditions, earthquakes, material shortages, extraordinary Internet congestion or extraordinary connectivity issues experienced by major telecommunications providers and unrelated to BackupMoxie infrastructure or connectivity to the Internet, or failure at BackupMoxie co-location facility, (each a "Force Majeure Event"). Upon the occurrence of a Force Majeure Event, BackupMoxie will be excused from any further performance of its obligations effected by the Force Majeure Event for so long as the event continues
Relationship of the Parties. For purposes of these Terms of Service, including if you create a BackupMoxie account, you are not an employee or agent of BackupMoxie and you will not represent that you are any of the foregoing. Each party will be independent and act independently and not as a contractor, partner, joint venturer, agent, employee or employer of the other and will not bind or attempt to bind the other to any contract. Each party will be solely responsible for their own costs and expenses incurred in the performance of their obligations under these Terms of Service, including without limitation any expenses associated with the implementation of these Terms of Service.
Severability and Waiver. In the event that any provision in these Terms of Service are held to be invalid or unenforceable, the remaining provisions will remain in full force and effect. The failure of BackupMoxie to enforce any right or provision of these Terms of Service will not be deemed a waiver of such right or provision
Controlling Law and Jurisdiction. These Terms of Service and any action related thereto will be governed by the laws of the State of Colorado without regard to its conflict of law provisions. The exclusive jurisdiction and venue of any action with respect to the subject matter of these Terms of Service will be the state and federal courts located in City and County of Denver, Colroado, and each of the parties hereto waives any objection to jurisdiction and venue in such courts.
Notice. Any notice or other communication to be given hereunder will be in writing and given: (a) by BackupMoxie via email (in each case to the address that you provide); (b) a posting on the Site; or (c) by you via email to email@example.com or to such other addresses as BackupMoxie may specify in writing. The date of receipt will be deemed the date on which such notice is transmitted.
Entire Agreement. These Terms of Service are the entire and exclusive agreement between BackupMoxie and you regarding the Site, BackupMoxie Content, Services, and User Files, and these Terms of Service supersede and replace any prior agreements between BackupMoxie and you regarding the Site, BackupMoxie Content, Services, and User Files.
Questions. If you have any questions about these Terms of Service, please contact BackupMoxie at firstname.lastname@example.org.