STANDARD TERMS AND CONDITIONS OF SERVICE
THESE STANDARD TERMS AND CONDITIONS OF SERVICE (THIS “AGREEMENT“) ARE EFFECTIVE AS OF JANUARY 1, 2010 AND GOVERN ALL USE OF THE ARMADA REMOTE SERVER HOSTING AND DATA BACKUP SERVICE AND ALL RELATED SERVICES, PRODUCTS, SOFTWARE, AND TECHNOLOGY, (COLLECTIVELY, THE “SERVICE“) PROVIDED BY ARMADA CLOUD, LLC (“ARMADA“) TO THE SERVICE SUBSCRIBER (“SUBSCRIBER“) IDENTIFIED ON THE APPLICABLE ORDER FORM SIGNED BY THE PARTIES. THE ORDER FORM IS HEREBY INCORPORATED INTO AND MADE A PART OF THIS AGREEMENT. BY SIGNING THE ORDER FORM, SUBSCRIBER AGREES TO THE TERMS OF THIS AGREEMENT. IF THERE IS CONFLICT BETWEEN THE ORDER FORM AND THIS AGREEMENT, THE ORDER FORM SHALL CONTROL.
1.1 Service Description. The Service provides the capability to store, back up, and retrieve Subscriber’s data (“Subscriber Data“) on Armada’s computer systems during the “Service Period” (as defined in Section 4) in accordance with this Agreement. The Service includes client software (“Software“) installed on Subscriber’s computer systems. The Software connects to a server network infrastructure that is deployed on the Internet and operated as a managed service by Armada and its third party service providers. All or portions of the Service provided hereunder may be provided by third party service providers, including, without limitation, the Software. Unless otherwise agreed to by the parties in the Order Form, Data is stored through the Service for a rolling 30 day period. After the 30 day period has expired, Data will be at risk of being purged.
1.2 Provision of Service. In consideration of Subscriber satisfying its obligations under this Agreement, Armada shall provide the Service to Subscriber in accordance with the Order Form and this Agreement. For the avoidance of doubt, Armada is under no obligation to provide the Service until the Order Form has been signed by both parties.
1.3 Change of Service. Subscriber shall have the right to receive new features to the Software and Service as Armada, in its sole discretion, makes such features available during the Service Period. In order to optimize the Software and Service, Armada may, at its discretion and without notice, add, modify, or remove features from the Software or Service at any time. In such event, Subscriber may be required to upgrade to the latest version of the Software in order for the Service to continue to function correctly. Subscriber agrees that Armada may, in its sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of the Service and to prevent abuses.
1.4 License. The Software and access to the Service is licensed, not sold. Armada hereby grants to Subscriber during the Service Period a limited, non-exclusive, non-transferable, right and license to access and use the Software and Service solely in accordance with the terms of this Agreement. Armada shall retain all right, title, and interest in and to the Software and Service, including, without limitation, all intellectual property rights embodied therein. Subscriber does not acquire any rights, express or implied, in the Software or Service, other than those specified in this Agreement. To the extent permissible by applicable law, Subscriber may not, nor may Subscriber permit any other person to (a) sublicense, rent, or lease any portion of the Software or Service; (b) reverse engineer, decompile, disassemble, modify, translate, make any attempt to discover the source code of the Software or create derivative works from the Software or Service; (c) use the Software or Service as part of a facility management, timesharing, service provider, or service bureau arrangement; or (d) use the Software or Service to upload, transmit, or transfer any data, information, materials, or content to Armada or any third party other than transmissions or transfers of information necessary for the intended use of the Software and Service. Subscriber also agree not to use the Software or Service for any unlawful or improper purpose.
2. Subscriber Responsibilities.
2.1 Communication Connections; Data Storage; Encryption Keys. Subscriber is solely responsible for acquiring and maintaining the Internet or telecommunications services and devices required to access and/or use the Software and Service. Subscriber is solely responsible for selecting the specific Data to be stored through the Service. Armada exercises no control over and disclaims any responsibility or liability for Subscriber’s selection or omission of Data to be stored through the Service. Subscriber may have the option to use and keep its own encryption key in connection with Data stored through the Service. If subscriber decides to use and keep its own encryption key, Subscriber is solely responsible for creating, maintaining, and keeping such encryption key. Armada exercises no control over and disclaims any responsibility or liability for Subscriber’s encryption key, including, without limitation, Subscriber’s inability to unencrypt Data for any reason.
2.2 User Conduct and Responsibility; Compliance with Applicable Laws. Use of the Service (including the transmission of any Data Subscriber chooses to back up through the Service) is subject to all applicable local, state, national, and international laws and regulations, including, without limitation, United States export laws. Subscriber agrees to comply with such applicable laws and regulations and with use instructions and specifications respecting the Software or Service provided by Armada, and not to (a) use the Service for illegal purposes, (b) transmit or store material that may infringe the intellectual property rights or other rights of third parties or that is illegal, tortious, defamatory, libelous, or invasive of another’s privacy; (c) transmit or store data belonging to another party without first obtaining all consents required by law from the data owner for transmission of the data to Armada for storage within the United States; (d) transmit any material that contains software viruses or other harmful computer code, files, or programs such as trojan horses, worms, or time bombs; (e) interfere with or disrupt servers or networks connected to the Service; or (f) attempt to gain unauthorized access to the Service, the accounts of other Service subscribers, or computer systems or networks connected to the Service. Subscriber’s right to use the Software and Service is personal to Subscriber. Subscriber agrees not to resell the Software or Service.
2.3 Use of Subscriber’s Account. Subscriber is solely responsible for all use of the Service, and the Data transmitted or stored through the Service, under Subscriber’s account. Armada retains the right, at Armada’s sole discretion, to determine whether or not Subscriber’s conduct is consistent with the terms of this Agreement and may suspend or terminate Subscriber’s access to the Service if Subscriber’s conduct is found to be in violation of the terms of this Agreement.
3. Service Fees; Payment Terms. All fees for the Service are set froth in the Order Form. All Service fees will be charged automatically in advance using the payment method Subscriber provides in the Order Form. If Subscriber provides Subscriber’s credit card information, Subscriber hereby authorizes Armada to automatically charge Subscriber’s credit card for charges that apply to Subscriber’s account. Fees are billed monthly in advance and are subject to change. Subscriber will provide all information necessary for Armada to bill for the Service. Subscriber affirms that the information Subscriber supplies to Armada is correct and complete and will promptly notify Armada whenever Subscriber’s personal or billing information changes. Specifically, if Subscriber elects to pay by credit card, Subscriber is responsible for directly updating or notifying Armada of any changes to Subscriber’s credit card information (including, without limitation, credit card number, expiration date, billing address). If, at any time, a Service fee charge is declined or otherwise rejected by Subscriber’s bank or credit card company or Subscriber otherwise fails to pay for the Service, Armada may immediately suspend the Service for Subscriber until Subscriber provides a valid payment method and pays any past due amounts. Subscriber will have thirty (30) days to contact Armada and update Subscriber’s payment method and have Subscriber account reactivated. If no action is taken, Armada may terminate Subscriber’s account and Subscriber Data may be purged. In order to reactivate Subscriber’s account, Subscriber will be charged any past due amounts and any fees incurred by Armada for rejected payments.
4. Service Period. The service period shall begin on the earlier of (a) the date for commencement of Service stated in the Order Form and (b) the date that Armada actually commences to provide the Service and shall end upon termination of this Agreement by either party as set forth in Section 5.2 (the “Service Period“).
5. Suspension; Termination; Force Majeure.
5.1 Suspension. Armada may in its sole discretion suspend provision of the Service at any time in the event that (a) Armada is obligated or advised to comply with an order, instruction, directive, or request of the government, regulator, court, or other competent authority; (b) Armada has reason to believe that Subscriber is in breach of any of its obligations under this Agreement, or (c) any “Force Majeure Event” (as defined in Section 5.4). Armada will use commercially reasonable efforts to notify Subscriber in advance of any suspension of Service.
5.2 Termination. Either party may terminate this Agreement for any reason or no reason upon giving thirty (30) days prior written notice thereof to the other party, whereupon the Service Period shall end.
5.3 Effect of Termination. Upon termination of this Agreement and the Service Period (a) Data stored through the Service will be at risk of being purged; (b) Armada shall not be obligated to maintain such Data, forward such Data to Subscriber or a third party, or migrate such Data to another backup service or account; (c) Subscriber will not be able to store Data to any additional backup space under the Service that Subscriber may have purchased separately unless and until Subscriber’s current Service Period is renewed or Subscriber’s new Service Period is activated; and (d) Armada has the right (but not the obligation) to disable, uninstall, and/or remove the Software from Subscriber’s computer systems.
5.4 Force Majeure. Neither party is responsible for delays or failures in performance resulting from acts of God, strikes, lockouts, riots, acts of war and terrorism, embargoes, unanticipated changes in governmental regulations, epidemics, fire, communication line failures, power failures, earthquakes, other disasters, or any other reason where failure to perform is beyond the control of, and not caused by, the non-performing party or its vendors, service providers or suppliers (each, a “Force Majeure Event“).
6. Confidentiality; Privacy and Data Protection.
6.1 Confidentiality. Without the prior written consent of the disclosing party, the receiving party will not use any “Confidential Information” (as defined below) except in performing under this Agreement and will not, by any act or failure to act, divulge to any third party any Confidential Information. “Confidential Information” means any information that is transmitted by the disclosing party to the receiving party (or otherwise developed or obtained by the receiving party) in connection with the performance of this Agreement that should reasonably have been understood by the receiving party due to legends or other markings, the circumstances of disclosure or the nature of the information itself, to be proprietary and confidential to the disclosing party, including, without limitation, Subscriber’s Data and either party’s proprietary, technical, marketing, business, financial, or other non- pubic information. Confidential Information does not include (a) any information that is known to the receiving party prior to obtaining it from the disclosing party, (b) any information that is, at the time of use or disclosure by the disclosing party, then in the public domain through no fault of the receiving party, or (c) any information obtained by the receiving party (other than for the performance of its obligations hereunder) without an obligation of confidentiality and from a third party who did not receive it directly or indirectly from the disclosing party.
6.3 Cooperation with Law Enforcement. Notwithstanding Sections 6.1 and 6.2, Armada reserves the right to cooperate with any legal process and any law enforcement or other government inquiry related to Subscriber’s use of the Service. This means that Armada may provide documents and information, including potentially Confidential Information, relevant to a court subpoena or to a law enforcement or other government investigation. Armada has no obligation to monitor use of the Service and/or Data transmitted or stored through the Service. To the maximum extent permissible under applicable law, Armada reserves the right at all times to monitor, review, retain, and/or disclose any Data or other information as necessary to satisfy any applicable law, regulation, legal process, or governmental request, or to investigate any suspected breach of this Agreement. By using the Service, Subscriber acknowledges and agrees that Armada may collect, transmit, store, disclose, and analyze such information for these purposes.
7. DISCLAIMER OF WARRANTY. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, THE SOFTWARE AND SERVICE AND ANY THIRD PARTY SOFTWARE OR SERVICE ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS, WITH ALL FAULTS. ARMADA AND ITS LICENSORS PROVIDE THE SERVICE WITHOUT WARRANTIES OF ANY KIND, WRITTEN OR ORAL, STATUTORY, EITHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF TITLE, NONINFRINGEMENT, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INCLUDING THOSE ARISING FROM COURSE OF DEALING OR COURSE OF TRADE AND DISCLAIMS ANY SUCH WARRANTIES. ARMADA AND ITS LICENSORS DO NOT
WARRANT THAT THE SERVICE OR SOFTWARE WILL BE UNINTERRUPTED, ERROR-FREE, OR SECURE. NO ADVICE OR INFORMATION GIVEN BY ARMADA, ITS LICENSORS, AFFILIATES, ITS AGENTS, OR ITS CONTRACTORS OR THEIR RESPECTIVE EMPLOYEES WILL VARY THE TERMS OF THIS AGREEMENT OR CREA TE ANY W ARRANTY . ARMADA IS NOT RESPONSIBLE FOR DEFACEMENT, MISUSE, ABUSE, NEGLECT, IMPROPER USE OF THE SERVICES BY SUBSCRIBER OR FOR ANY FORCE MAJEURE EVENTS. TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, ARMADA TECHNICAL SUPPORT (IF ANY) IS NOT WARRANTED AND IS USED AT SUBSCRIBER OWN RISK. ARMADA AND ITS LICENSORS MAKE NO WARRANTY REGARDING TRANSACTIONS EXECUTED AND CONTENT AND INFORMATION ACCESSED BY USING THE SERVICE. TO THE EXTENT THAT ANY LIMITATION IN THIS SECTION IS NOT PERMITTED BY APPLICABLE LAW, SUCH LIMITATION WILL NOT APPLY TO SUBSCRIBER ONLY TO THE EXTENT IT IS BARRED BY APPLICABLE LAW.
8. LIMITATION OF LIABILITY. SOME STATES AND JURISDICTIONS DO NOT ALLOW FOR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THE BELOW LIMITATION OR EXCLUSION MAY NOT APPLY TO SUBSCRIBER:
8.1 TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, SUBSCRIBER ASSUMES TOTAL RESPONSIBILITY FOR USE AND RESULTS OF USE OF THE SERVICE. ARMADA AND ITS LICENSORS EXERCISE NO CONTROL OVER AND DISCLAIM ANY RESPONSIBILITY OR LIABILITY FOR THE CONTENT OR DATA CREATED OR ACCESSIBLE USING THE SERVICE. SUBSCRIBER AGREES NOT TO USE THE SERVICE IN HIGH RISK ACTIVITIES WHERE AN ERROR COULD CAUSE DAMAGE OR INJURY.
8.2 TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, REGARDLESS OF THE LEGAL THEORY UNDER WHICH LIABILITY IS ASSERTED AND REGARDLESS OF WHETHER ARMADA HAS BEEN ADVISED OF THE POSSIBILITY OF LIABILITY, LOSS OR DAMAGE, ARMADA, ITS LICENSORS, AFFILIATES, AGENTS, AND CONTRACTORS WILL NOT BE LIABLE TO SUBSCRIBER FOR ANY INCIDENTAL, INDIRECT, SPECIAL, RELIANCE, PUNITIVE, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF USE, LOSS OF BUSINESS, LOST OR IMPUTED PROFITS OR REVENUES, LOSS OR DESTRUCTION OF CONTENT, INFORMATION OR DATA, COSTS OF COVER, INTERRUPTED SERVICE, OR RELIANCE UPON THE SOFTWARE, SERVICE OR ASSOCIATED DOCUMENTATION) ARISING FROM OR RELATED TO THIS AGREEMENT OR THE SOFTWARE OR SERVICE.
8.3 TO THE MAXIMUM EXTENT PERMISSIBLE UNDER APPLICABLE LAW, WITH REGARD TO ANY SERVICE RELATED CLAIM FOR DAMAGES THAT IS NOT LIMITED BY THIS SECTION, SUBSCRIBER’S EXCLUSIVE REMEDIES FOR SUCH CLAIM WILL BE LIMITED TO THE TOTAL CHARGES PAID BY SUBSCRIBER TO ARMADA FOR THE AFFECTED SERVICE IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM. ARMADA’S TOTAL AGGREGATE LIABILITY ARISING FROM OR RELATED TO THIS AGREEMENT WILL NOT EXCEED THE TOTAL CHARGES PAID BY SUBSCRIBER TO ARMADA UNDER THIS AGREEMENT IN THE ONE (1) MONTH IMMEDIATELY PRECEDING THE OCCURRENCE OF THE EVENT GIVING RISE TO THE CLAIM.
8.4 ARMADA AND ITS LICENSORS DISCLAIM ALL LIABILITY OR RESPONSIBILITY IF SERVICE CHANGES REQUIRE CHANGES TO SUBSCRIBER’S EQUIPMENT, DEGRADE SUBSCRIBER’S EQUIPMENT PERFORMANCE OR SERVICE PERFORMANCE WITH THE EQUIPMENT, OR MAKE SUBSCRIBER’S EQUIPMENT OBSOLETE.
9. Indemnification. To the maximum extent permissible under applicable law, Subscriber shall indemnify and hold Armada, its parents, subsidiaries, affiliates, officers, directors, employees, and agents harmless from and against any claims, demands, costs, damages, losses, liabilities, and expenses, including reasonable attorneys’ fees and legal costs (whether brought by third parties or otherwise) arising from or relating to Subscriber’s (or anyone using Subscriber’s account) use of the Software or Service, including, without limitation, arising from or relating to Data transmitted or stored through the Service.
10. U.S. Government Restricted Rights. For United States Government procurements, the Software is deemed to be commercial computer software as defined in FAR 12.212 and subject to restricted rights as defined in FAR Section 52.227-19 “Commercial Computer Software—Restricted Rights” and DFARS 227.7202, “Rights in Commercial Computer Software or Commercial Computer Software Documentation”, as applicable, and any successor regulations. Any use, modification, reproduction, performance, display, or disclosure of the Software by the U.S. Government shall be solely in accordance with the terms of this Agreement.
11. Export Regulation. Subscriber acknowledges that the Software and related technical data and services (collectively “Controlled Technology“) is subject to the import and export laws of the United States, specifically the U.S. Export Administration Regulations (EAR), and the laws of any country where Controlled Technology is imported or re-exported. Subscriber agrees to comply with all relevant laws and will not export any Controlled Technology in contravention to U.S. law nor to any prohibited country, entity, or person for which an export license or other governmental approval is required.
12. Governing Law; Arbitration. This Agreement shall be governed by and interpreted in accordance with the laws of the State of California without regard to any conflict of laws principles. In the event of any dispute concerning the validity, interpretation, enforcement, or breach of this Agreement, the parties unconditionally and irrevocably agree that the dispute will be resolved by arbitration (and accordingly they hereby consent to personal jurisdiction over them) in San Diego, California, in accordance with JAMS pursuant to its Comprehensive Arbitration Rules and Procedures. The arbitration will be heard and determined by a single arbitrator. The arbitrator’s decision in any such arbitration will be final and binding upon the parties and may be enforced in any court of competent jurisdiction. The prevailing party will be entitled to recover its attorneys’ fees and arbitration costs from the other party. The parties agree that the arbitration will be kept confidential and that the existence of the proceeding and any element of it (including, without limitation, any pleadings, briefs or other documents submitted or exchanged and any testimony or other oral submissions and awards) will not be disclosed beyond the arbitration panel, except as may lawfully be required in judicial proceedings relating to the arbitration or by disclosure rules and regulations of securities regulatory authorities or other governmental agencies.
13. Miscellaneous. The parties are independent contractors, and nothing in this Agreement shall be deemed or construed to create, or have been intended to create a partnership, joint venture, employment, or agency relationship between the parties hereto. This Agreement may be assigned by a party only with the written approval of the other party. Notwithstanding the foregoing, Armada may assign this Agreement, without the prior written approval of Subscriber, as part of a corporate reorganization, consolidation, merger, or sale of substantially all of its assets or equity interests. All notices between the parties shall be in writing and shall be deemed to have been given if personally delivered or sent by certified mail (return receipt requested), or by facsimile machine, to the other party’s address set forth in the Order Form or such other address as is provided by notice as set forth herein. Notices shall be deemed effective upon receipt. Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal, or unenforceable in any respect under any applicable law, such invalidity, illegality, or unenforceability shall not affect any other provision or portion of any provision and this Agreement shall be reformed, construed, and enforced in as if such invalid, illegal, or unenforceable provision or portion of any provision had never been contained herein. This Agreement may be executed in one or more counterparts, each of which shall be deemed an original, but all of which shall constitute one and the same instrument. The language in and provisions of this Agreement shall in all cases be simply construed according to their fair meaning and not strictly construed for or against either party. This Agreement, together with the Order Form, represents the entire understanding and agreement between the parties with respect to the subject matter hereof and supersedes all prior agreements and communications of the parties, oral or written.