RSTOR User Agreement
CLICKING ON THE “ACCEPT” BUTTON OR CREATING A CUSTOMER ACCOUNT AND DOWNLOADING, INSTALLING AND/OR USING THE R-STOR SERVICE OR ANY TECHNOLOGY, IDEA, DATA, DATABASES, ALGORITHM OR INFORMATION CONTAINED THEREIN (EACH, AS APPLICABLE) OR PROVIDED THEREWITH, ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON USING THE SERVICES, EITHER ON BEHALF OF YOURSELF OR ANY THIRD PARTY ENTITY AND R-STOR, AND YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT WITH RESPECT TO YOUR USE OF THE SERVICES.
YOU REPRESENT AND WARRANT THAT YOU HAVE THE LEGAL CAPACITY AND AUTHORITY TO ENTER INTO A BINDING AGREEMENT TO ADHERE TO THE TERMS AND CONDITIONS SET FORTH HEREIN, AND THAT THE R-STOR SERVICE WILL BE USED ONLY IN ACCORDANCE WITH THESE TERMS AND CONDITIONS AND WITH ALL APPLICABLE LAWS. IF AN INDIVIDUAL IS REGISTERING OR USING THE R‑STOR SERVICE ON BEHALF OF AN ENTITY OR ORGANIZATION, THAT INDIVIDUAL WARRANTS, REPRESENTS, AND COVENANTS TO R-STOR THAT SUCH INDIVIDUAL IS DULY AUTHORIZED TO AGREE TO THESE TERMS AND CONDITIONS ON BEHALF OF THE ORGANIZATION AND TO BIND THE ORGANIZATION TO THEM.
Use of the R-Stor Service
1.1 Access. Subject to the terms and conditions of this Agreement, R-Stor hereby grants you and your Authorized Users (as defined below), for your internal business purposes and for so long as you maintain a User Account (as defined in Section 1.2) in good standing, a non-exclusive, non-transferable, non-assignable, and non-sublicensable right to access and use the R-Stor Service (including any customer portals which may also be made available to you in as part of or through with the R-Stor Service) in accordance with the Documentation. “Documentation” means the user, technical, and admin guides for the R-Stor Service (and any successor or related locations designated by R-Stor), as such Documentation may be updated by R-Stor from time to time.
1.2 Registration of User Accounts.
(b) Unless explicitly permitted by this Agreement, you will only create one User Account per email address. You agree to provide accurate and complete information in the creation of your User Account, and you acknowledge and agree you will update this information with any changes. You may authorize others (collectively, “Authorized Users”) to use the R-Stor Service on your behalf. Each Authorized User will establish or be provided with a username and password. You are responsible for the acts and omissions of your Authorized Users. Authorized Users may also be required to use other access credentials, such as an encryption key (collectively, “User Credentials”). We reserve the right to suspend or terminate the User Account, or the access of any Authorized User, for any reason, including if any registration information is inaccurate, untrue, or incomplete, or if you or any of your Authorized Users fail to maintain the security of any User Credentials.
(c) You and your Authorized Users are responsible for ensuring that User Credentials are kept confidential and are not disclosed to any third party. You are fully responsible for all activity that occurs under your User Account using the User Credentials, including any loss or deletion of Your Content (as defined in Section 7 below), regardless of whether the activities are authorized by you or undertaken by you, your employees or a third party (including your contractors, agents or Authorized Users). R-Stor and its Affiliates are not responsible for unauthorized access to your User Account.
“Affiliate” means any corporation, partnership, or other entity now existing or hereafter organized that directly or indirectly controls, is controlled by or under common control with R-Stor. For purposes of this definition “control” means the direct possession of a majority of the outstanding voting securities of an entity.
(d) You agree to and will ensure that each Authorized User will, notify us at email@example.com immediately upon learning of any unauthorized access to a User Account or any other suspected security breach.
1.3 Third-Party Content. Third-Party Content made available by R-Stor through the R-Stor Service, if any, may be used by you, solely at your option. Third-Party Content is solely governed by the separate terms and conditions accompanying such Third-Party Content, which terms and conditions may include separate fees and charges. “Third Party Content” means content made available to you by any third party on the R-Stor website or in conjunction with the R-Stor Service.
1.4 Usage Data. To provide billing and administration services, or to investigate fraud, abuse, or violations of this Agreement, we may process usage data related to your User Account, such as resource identifiers, metadata tags, security and access roles, rules, usage policies, permissions, usage statistics, and analytics (“Usage Data”).
1.5 Limited R-Stor Services. We may offer the R-Stor Service for free in limited circumstances, such as free trials, or may offer a pre-release version of any R-Stor Service (“Limited R-Stor Service”). The Limited R-Stor Service requires an active User Account and is subject to the time limits that are made known to you at the time of order fulfillment, via email, or the Documentation. You acknowledge and agree that you will use the Limited R-Stor Service in compliance with any related Documentation and restrictions. You acknowledge that your, and your Authorized User’s, use of any Limited R-Stor Service is for the sole purpose of evaluating and testing the applicable such service and providing feedback to R-Stor. Further, you agree that any pre-release version of a R-Stor service is provided “AS IS”, maybe experimental in nature, has not been fully tested and may be discontinued at any time with or without notice. We may, at our discretion, discontinue any Limited R-Stor Service at any time, at which point your access will end, and any Your Content shall be deleted.
1.6 Client Download. The R-Stor Service may require you to install the software (as defined below) (the “Client Download”). Subject to the terms and conditions of this Agreement, and in consideration of the applicable fees paid by you, R-Stor grants to you a non-exclusive, non-transferable, and non-assignable, limited license (without the right to sublicense) to install, execute and use the Client Download solely: (i) in object code format; (ii) for your internal use, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with Documentation and the terms hereof.
1.7 Your Content. “Your Content” means content that you or any Authorized User transfer or otherwise make available to us for storage or hosting by the R-Stor Service in connection with your User Account. Your content does not include your User Account information. You will ensure that Your Content will not (a) violate any terms of this Agreement or referenced R-Stor policies or Documentation, or any applicable law, and (b) contain any personal data (as defined by the General Data Protection Regulation 2016/679) that originates in the European Economic Area. You are solely responsible for the development, content, operation, maintenance, and use of Your Content.
You represent and warrant to us that: (i) you or your licensors own all right, title, and interest in and to Your Content and Feedback; (ii) you have all rights in Your Content and Feedback necessary to grant the rights contemplated by this Agreement; and (iii) none of Your Content use of the R-Stor Service will violate the Terms of the End User License Agreement.
R-Stor Changes; Support and Maintenance
2.1 To the R-Stor Service. We may change or discontinue any or all of the R-Stor Service or change or remove functionality of any or all of the R-Stor Service from time to time. We will notify you of any material change to or discontinuation of the R-Stor Service by posting the revised version on our website and/or communicating it to you. Any changes to the R-Stor Services will be effective thirty (30) days from the time we post such changes. Your continued use of the R-Stor Services thereafter constitutes your acceptance of the changed R-Stor Service.
2.2 To the APIs. We may change or discontinue any APIs for the R-Stor Service from time to time. For any discontinuation of or material change to an API, 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).
2.3 To the Service Level Agreements. We may change, discontinue or add Service Level Agreements from time to time in accordance with the terms of this User Agreement.
2.4 Support and Maintenance. During the Term, R-Stor will provide you with support via the R-Stor ticketing system, under R-Stor’s then-current service level agreement. R-Stor will provide you with service updates and bug fixes that we, in our sole discretion, make generally available to our other similarly users of the R-Stor Service at no charge. R-Stor may temporarily limit or suspend the availability of all or part of the R-Stor Service if it is necessary for reasons of public safety, security, maintenance of the R-Stor Service, interoperability of services, data protection, or to perform work that is necessary for operational or technical reasons.
Security and Data Privacy
3.1 R-Stor Security. We care about your privacy, however, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the User Account and/or Your Content for improper purposes. You provide your User Account details and Your Content to us at your own risk, and you are responsible for properly configuring and using the R-Stor Service and otherwise taking appropriate action to secure, protect, and backup your User Account(s) and Your Content in a manner that will provide appropriate security and protection, which might include use of encryption to protect Your Content from unauthorized access and routinely archiving Your Content.
3.2 Data Privacy. You may specify the R-Stor regions in which Your Content will be stored. You consent to the storage of Your Content in, and transfer of Your Content into, the R-Stor regions you select. When choosing R-Stor regions outside of the European Union, you acknowledge that you are responsible for understanding applicable law(s) and regulation(s) concerning the transfer of Your Content and will not use the R-Stor Service to submit, input, store, or otherwise process personal data (as defined by the General Data Protection Regulation 2016/679) that originates in the European Economic Area.
3.3 Access of User Data. We will not access or use Your Content except as necessary to maintain or provide the R-Stor Service (including as outlined in Section 1.5), or as necessary to comply with applicable laws, rules or regulations, or governmental orders. We will not move User Content from the R-Stor regions selected by you, except in each case as necessary to comply with applicable laws, rules or regulations, or governmental orders. Unless prohibited by law enforcement or it would violate any of the foregoing, we will give you notice of any legal requirement or order regarding the disclosure of User Data.
License Grant; Acknowledgment
4.2 Restrictions. You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i) access or use the R-Stor Service in any manner or for any purpose other than expressly permitted by the Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the R-Stor Service or Documentation; (iii) modify, disassemble, decompile or reverse engineer any part of the R-Stor Service or apply any other process or procedure to derive source code of any software included in R-Stor Service (except solely to the extent permitted by applicable law); (iv) access or use the R-Stor Service in a way intended to avoid exceeding usage limits or quotas; (v) use the R-Stor Service or Documentation in order to build a similar or competitive application or service; (vi) remove, tamper with or alter any disabling mechanism or circumvent any technical protection measures associated with the R-Stor Service, or otherwise use any tool to enable features or functionalities that are otherwise disabled in R-Stor Service; or (vii) use the R-Stor Service to submit, input, store, or otherwise process personal data (as defined by the General Data Protection Regulation 2016/679) that originates in the European Economic Area.
You further acknowledge and agree that, unless otherwise expressly agreed or otherwise permitted by R-Stor, in writing (x) resell or sublicense the R-Stor Service; or (y) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the R-Stor Service or Documentation.
4.3 HIPAA. If you are a “covered entity” or “business associate” pursuant to the Health Insurance Portability and Accountability Act (“HIPAA”), you will not utilize the R-Stor Service to store, process, transmit, or otherwise utilize protected health information (PHI) (as defined by HIPAA) without first receiving R-Stor’s prior written consent and executing a Business Associate Addendum (BAA) to this Agreement. To learn more about using the R-Stor Service as a HIPAA covered entity or business associate please email R-Stor at firstname.lastname@example.org.
4.4 Authorized 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 R-Stor Service. You are responsible for your Authorized Users’ use of Your Content and the R-Stor Service. You will ensure that all Authorized Users comply with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement caused by an Authorized User, you will immediately suspend access to Your Content and the R-Stor Service by such Authorized User. We do not provide any support or services to any Authorized User unless we have a separate agreement obligating us to provide such support or services to an Authorized User.
4.5 Assessments. You acknowledge and agree that (i) you assessed your data protection needs, network environment, technical specifications, and fees and cost of the R-Stor Service, and you are solely responsible for your decision to use the R-Stor Service even if R-Stor has provided guidance to you in connection with the R-Stor Service selected by you; and (ii) you are solely responsible for ensuring that you maintain and operate your information technology infrastructure in a manner appropriate to your use of the R-Stor Service and its Documentation.
4.6 Your Conduct. You represent and warrant that Your Content and you and your Authorized User’s, use of the R-Stor Service, and the technology related thereto, shall not (i) interfere with the proper working of the R-Stor Services or impose an unreasonably large load on the R-Stor infrastructure; (ii) give rise to civil or criminal liability, e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (iii) violate or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses, harasses or stalks any other person; or (iv) initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.
Fees and Payment
5.1 Service Fees. Fees for the R-Stor Service (“Fees”) will be calculated and billed based on the R-Stor Service selected by you or the R-Stor quotation provided to you (which takes precedence). If we suspect that your account is at risk of non-payment, as determined at our discretion, we may bill you more frequently. All amounts payable by you under this Agreement will be paid to us without any setoff or counterclaim. We may increase or add new fees and charges for any existing R-Stor Service by giving you at least thirty (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.
Your failure to maintain your current credit card information or other alternative payment methods may result in an interruption of your use of the R-Stor Service.
5.2 Credit Card Payments. We utilize third-party payment providers to process credit card payments on R-Stor’s behalf (“Payment Provider”). Such Payment Provider’s policies govern the processing of your payment, and you must refer to those policies and not this Agreement to determine your rights and liabilities. By providing your credit card information to the Payment Provider, you authorize R-Stor, through such Payment Provider, to immediately charge the Fees for the R-Stor Service during any applicable term for R-Stor Service.
5.3 Taxes. All fees payable by you are exclusive of means any taxes and duties, including, without limitation, VAT, Service Tax, GST, excise taxes, sales and transactions taxes, and gross receipts tax (“Taxes”), which are your responsibility. We will charge and you will pay such applicable Taxes. We will not collect, and you will not pay, any Taxes for which you furnish us a properly completed exemption certificate or a direct payment permit certificate for which we may claim an available exemption. You shall indemnify, defend and hold R-Stor harmless for any liability or expense we may incur in connection with the failure to pay, or collection of, any Taxes.
5.4 No Deduction. All payments made by you to us under this Agreement will be made free and clear of any deduction or withholding. 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.
5.5 Ongoing Fees. You acknowledge and agree that your credit card or alternative payment method will be automatically charged usage Fees during such period as you have an active User Account and you use the R-Stor Service unless you cancel your User Account. You may cancel your User Account by emailing email@example.com.
It is our policy to respond to alleged infringement notices that comply with the Digital Millennium Copyright Act of 1998 (“DMCA”).
If you believe that your copyrighted work has been copied in a way that constitutes copyright infringement and is accessible via the R-Stor Service, please notify R-Stor’s copyright agent as outlined in the DMCA. For your complaint to be valid under the DMCA, you must provide the following information in writing:
- An electronic or physical signature of a person authorized to act on behalf of the copyright owner;
- Identification of the copyrighted work that you claim has been infringed;
- Identification of the material that is claimed to be infringing and where it is located on the R-Stor Service;
- Information reasonably sufficient to permit R-Stor to contact you, such as your address, telephone number, and email address;
- A statement that you have a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or law; and
- A statement, made under penalty of perjury, that the above information is accurate, and that you are the copyright owner or are authorized to act on behalf of the owner.
The above information must be submitted to the following DMCA Agent:
Address: 12930 Saratoga Ave., D-2
UNDER FEDERAL LAW, IF YOU KNOWINGLY MISREPRESENT THAT ONLINE MATERIAL IS INFRINGING, YOU MAY BE SUBJECT TO CRIMINAL PROSECUTION FOR PERJURY AND CIVIL PENALTIES, INCLUDING MONETARY DAMAGES, COURT COSTS, AND ATTORNEYS’ FEES.
Proprietary Rights; Confidentiality
7.1 Reservation of Rights. You acknowledge and agree that the software, code, hardware, trademarks, trade secrets, proprietary methods, and systems used to provide the R-Stor Service (the “R-Stor Technology”) and the content made available or displayed by us through the R-Stor Service, including all text, graphics, images, and the look and feel of such R-Stor Service (collectively, the “R-Stor Content”) are owned by or licensed to R-Stor, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to the R-Stor Technology or R-Stor Content to you, either expressly, or by implication, estoppel, or otherwise. Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, R-Stor reserves all right, title, and interest in and to the R-Stor Technology and R-Stor Content. No right or license is granted by us to you or your Authorized Users to use any R-Stor trademark, trade name, service mark, product name, or other source designators.
Subject to the terms of this Agreement, you are hereby granted a limited, revocable, non-exclusive, non-sublicensable, non-transferable license to do the following: (a) access and use the R-Stor Service solely in accordance with this Agreement; and (b) copy and use the R-Stor Content solely in connection with your permitted use of the R-Stor Service. Except as provided in this Section 7.1, you obtain no rights under this Agreement from us to the R-Stor Service, including any related intellectual property rights. Some R-Stor Content and Third-Party Content may be provided to you under a separate license, such as the Apache License, Version 2.0, or other open-source licenses. In the event of a conflict between this Agreement and any separate license, the separate license will prevail with respect to the R-Stor Content or Third-Party Content that is the subject of such separate license.
7.2 Ongoing Development. R-Stor may develop and provide ongoing innovation to the R-Stor Service, including new features, functionality, and efficiencies. In the event R-Stor adds new features or functionality (collectively, “New Features”) to the R-Stor Service, R-Stor may offer the New Features to you at no additional charge or, if R-Stor generally charges customers for such functionality, R-Stor may condition your use of the New Features on the payment of additional Fees.
7.3 Feedback. Notwithstanding anything to the contrary in this Agreement, you hereby (a) agree that all intellectual property rights in the Feedback, and all other ownership in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to the R-Stor Service, are and shall be the sole and exclusive property of R-Stor and (b) assign to R-Stor all right, title, and interest in and to all intellectual property rights in the Feedback, and all other owners in any ideas, modifications, enhancements, improvements, or any other suggestion specifically relating to the R-Stor Service. All Feedback will be treated as R-Stor’s Confidential Information. Without limiting the generality of the foregoing, you agree that your provision of Feedback does not give you any intellectual property or any other right, title, or interest in or to any aspects of the R-Stor Service, even if such Feedback leads to the creation of a new product or service by R-Stor or New Features. “Feedback” means any suggestions, enhancement requests, recommendations, corrections, or other feedback provided by you, your affiliates, and/or Authorized Users relating to the features or operation of the R-Stor Service and Documentation.
7.4 Confidentiality. Either party may, from time to time, deliver to the other certain non-public information including formulas, flow charts, diagnostic routines, business information, forecasts, financial plans and data, balance sheet information, customer information, marketing plans, hardware, software, and unannounced product information (“Confidential Information”). Confidential Information shall also include the R-Stor Content and Your Content, and any other information disclosed by a party to the other party, in whatever form, including visually and orally, and designated in writing as proprietary or confidential, or which – to a reasonable person familiar with the disclosing party’s business and the industry in which it operates – is of a proprietary or confidential nature. During the term of this Agreement and following three (3) years after its termination, each party will not disclose any such Confidential Information except as set forth herein. The receiving party shall hold in confidence, and shall not disclose (or permit or suffer its personnel to disclose) any Confidential Information to any person or entity except to a director, officer, employee, outside consultant, or advisor (collectively “Representatives”) who have a need to know such Confidential Information in the course of the performance of their duties for the receiving party and who are bound by a duty of confidentiality no less protective of the disclosing party’s Confidential Information than this Agreement. The receiving party and its Representatives shall use such Confidential Information only for the purpose for which it was disclosed and shall not use or exploit such Confidential Information for the benefit of another without the prior written consent of the disclosing party. Each party accepts responsibility for the actions of its Representatives and shall protect the other party’s Confidential Information in the same manner as it protects its own valuable confidential information, but in no event, shall less than reasonable care be used. The parties expressly agree that the terms of this Agreement are Confidential Information and you further agree that it shall not use the R-Stor Service to conduct comparative analysis, evaluations, or product benchmarks with respect to the services and will not publicly post any analysis or reviews of the services without R-Stor’s prior written approval. A receiving party shall promptly notify the disclosing Party upon becoming aware of a breach or threatened breach hereunder and shall cooperate with any reasonable request of the disclosing party in enforcing its rights.
Information will not be deemed Confidential Information hereunder if such information: (i) is known before receipt from the disclosing party, without any obligation of confidentiality; (ii) becomes known to the receiving party directly or indirectly from a source other than one having an obligation of confidentiality to the disclosing party; (iii) becomes publicly known or otherwise publicly available, except through a breach of this Agreement; or (iv) is independently developed by the receiving party without the use of the disclosing party’s Confidential Information. The receiving party may disclose Confidential Information according to the requirements of applicable law, legal process, or government regulation, provided that, where legally permitted to do so, it gives the disclosing party reasonable prior written notice to permit the disclosing party to contest such disclosure, and such disclosure is otherwise limited to the required disclosure.
Notwithstanding any other provision of this Agreement, both parties acknowledge that any use of the disclosing party’s Confidential Information in a manner inconsistent with the provisions of this Agreement may cause the disclosing party irreparable and immediate damage for which remedies other than injunctive relief may be inadequate. Therefore, both parties agree that, in addition to any other remedy which the disclosing party may be entitled hereunder, at law or equity, the disclosing party shall be entitled to an injunction or injunctions (without the posting of any bond and without proof of actual damages) to restrain such use in addition to other appropriate remedies available under applicable law.
Term; Termination; Suspension
8.1 Term. The term of your access to the R-Stor Service will continue for so long as you have an active and fully paid up User Account (the “Term”).
(a) Termination For Convenience. Subject to Section 5, either party may terminate this Agreement and your User Account for any reason by providing the other party at least thirty (30) days’ advance notice, provided, however, if you have elected the Reserved Capacity prepaid R-Stor Service, you remain responsible for all fees due for the balance of the then-current reserved capacity term, and you shall not be entitled to any refunds.
(b) Termination for Cause.
(i) By Either Party. Either party may terminate this Agreement and your User Account for cause if the other party is in material breach of this Agreement and/or your User Account and the material breach remains uncured for a period of thirty (30) days from receipt of notice by the other party.
(ii) By R-Stor. We may also terminate this Agreement and/or your User Account immediately upon notice to you (A) if our relationship with Affiliates and/or a third-party partner who provides software or other technology we use to provide the R-Stor Service expires, terminates, or requires us to change the way we provide the software or other technology as part of the R-Stor Service, or (B) in order to comply with the law.
8.3 Effect of Termination. Upon the date of expiration or termination: (i) all your rights under this Agreement and your User Account immediately terminate; (ii) you remain responsible for all fees and charges you have incurred through the termination date (except for Reserved Capacity, which is addressed in Section 8.2(a) above) and are responsible for any fees and charges you incur up to termination; (iii) you will immediately return or, if instructed by us, destroy all R-Stor content in your possession; and (iv) those terms intended to survive expiration or termination will continue to apply under their terms.
8.4 Suspension. We may suspend your or any Authorized User’s right to access or use any portion or all of the R-Stor Service immediately upon notice to you if we determine:
(a) your or an Authorized User’s use of the R-Stor Service (i) poses a security risk to R-Stor, the R-Stor Service, any other R-Stor customer, or any third party, (ii) could adversely impact our or our vendors’ systems, the R-Stor Service or the systems or content of any other R-Stor customer, (iii) could subject us, or any third party to liability, infringed, or misappropriated content, or (iv) could be fraudulent.
(b) you are, or any Authorized User is, in material breach of this Agreement;
(c) you are in breach of your payment obligations under Section 5; or
(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.
8.5 Effect of Suspension. If we suspend your right to access or use any portion or all of the R-Stor Service, (a) you remain responsible for all fees and charges you incur during the period of suspension; and (b) you will not be entitled to any service credits under the Service Level Agreements for any period of suspension.
9.1 In General By You.
You will defend, indemnify, and hold harmless us, our licensors, and each of their respective employees, officers, directors, and representatives from and against any claims, actions, proceedings, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ and court fees) (“Losses”) arising out of or relating to any claim concerning or in connection with: (a) your or any Authorized Users’ use of the R-Stor Service (including any activities under your User Account and use by your Authorized Users); or (b) breach by you of your representations, warranties or obligations set forth in this Agreement or violation of applicable law rule or regulation by you, your Authorized Users or Your Content. 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) and (b) above at our then-current hourly rates.
9.2 Intellectual Property.
(a) Subject to the limitations in this Section 9, R-Stor will defend you and your employees, officers, and directors against any third-party claim alleging that the R-Stor Service infringes or misappropriates a third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement, agreed to by R-Stor in writing.
(b) Subject to the limitations in this Section 9, you will defend R-Stor, its Affiliates, and their respective employees, officers, and directors against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(c) Neither party will have obligations or liability under this Section 9.2 arising from infringement by combinations of the R-Stor Service or Your Content, as applicable, with any other product, service software, data, content, or method. In addition, R-Stor will have no obligations or liability arising from your or any Authorized User’s use of the R-Stor Service after R-Stor has notified you to discontinue such use. The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the R-Stor Services or by Your Content.
(d) For any claim covered by Section 9.2(a), R-Stor will, at its election, either: (i) procure the rights to use that portion of the R-Stor Service alleged to be infringing; (ii) replace the alleged infringing portion of the R-Stor Service with a non-infringing alternative; (iii) modify the alleged infringing portion of the R-Stor Service to make it non-infringing; or (iv) terminate the allegedly infringing portion of the R-Stor Services and this Agreement.
9.3 Process. The obligations under this Section 9 will apply only if the indemnified party: (a) gives the other party prompt written notice of the claim; (b) permits the other party to control the defense and settlement of the claim, and (c) reasonably cooperates with the other party (at the other party’s expense) in the defense and settlement of the claim. In no event will a party agree to any settlement of any claim that involves any commitment, other than the payment of money, without the written consent of the other party.
THE R-STOR SERVICE IS PROVIDED “AS IS.” EXCEPT TO THE EXTENT PROHIBITED BY LAW, OR TO THE EXTENT OF ANY STATUTORY RIGHTS THAT CANNOT BE EXCLUDED, LIMITED OR WAIVED, WE AND OUR AFFILIATES AND LICENSORS (A) MAKE NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE REGARDING THE R-STOR SERVICE OR THE THIRD-PARTY CONTENT, AND (B) DISCLAIM ALL WARRANTIES, EXPRESS OR IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, 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 R-STOR SERVICE OR ANY THIRD-PARTY CONTENT WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, AND (IV) THAT ANY OF YOUR CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR ALTERED.
Limitations of Liability
R-STOR AND ITS AFFILIATES 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 WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE).
FURTHER, NEITHER WE NOR ANY OF OUR AFFILIATES OR LICENSORS WILL BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR INABILITY TO USE THE R-STOR SERVICE, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR YOUR USE OF OR ACCESS TO THE R-STOR SERVICE, (II) OUR DISCONTINUATION OF ANY OR ALL OF R-STOR SERVICE, OR, (III) WITHOUT LIMITING ANY OBLIGATIONS UNDER THE R-STOR SERVICE LEVEL AGREEMENT, ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE R-STOR SERVICE 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 R-STOR SERVICE; 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.
R-STOR AND ITS AFFILIATES’ AND LICENSORS’ AGGREGATE LIABILITY UNDER THIS AGREEMENT, REGARDLESS OF THE FORM OF ACTION, WILL NOT EXCEED THE AMOUNT YOU PAY R-STOR UNDER THIS AGREEMENT FOR THE R-STOR SERVICE THAT GAVE RISE TO THE CLAIM DURING THE 3 MONTHS BEFORE THE LIABILITY AROSE.
YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF R-STOR SERVICE.
THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.
Modifications to the Agreement
We may modify this Agreement (including any policies or any links referenced herein) at any time by posting a revised version on the R-Stor website or by otherwise notifying you in accordance with Section 13.10; provided, however, that we will provide at least thirty (30) days’ advance notice in accordance with Section 13.10 for adverse changes to any Service Level Agreement. Subject to the foregoing, 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 R-Stor Service 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 R-Stor website regularly for modifications to this Agreement.
13.1 Assignment. You will not and do not have the right to assign or otherwise transfer this Agreement or any of the rights and obligations under this Agreement, without R-Stor’s prior written consent. Any assignment or transfer, or attempt thereof, in violation of this Section 13.1 will be null and void. We may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger, or otherwise, all or substantially all or a portion of our assets, stock, or business. If another entity merges with or acquires R-Stor, or all, substantially all or a portion of our assets, stock, or business you agree your encrypted stored data and information that R-Stor has collected from you, including personally identifiable information, may, and you consent to, the secure transfer of such information to such successor or assignee.
13.2 Affiliates, Subcontractors, and Vendors. Some or all of the R-Stor Service, including support services, may be provided by R-Stor’s Affiliates, agents, subcontractors, and information system vendors. The rights and obligations of R-Stor may be, in whole or in part, exercised or fulfilled by the foregoing entities.
13.3 Entire Agreement. This Agreement incorporates any policies or other information found at the published links 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. 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 documents, (b) related to any online registration, response to any Request for Bid, Request for Proposal, Request for Information, or other questionnaires, or (c) related to any invoicing process that you submit or require us to complete. If the terms of this Agreement are inconsistent with the terms contained in the document referenced or linked herein, the terms contained in such document will control.
13.4 Force Majeure. We and our Affiliates 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, vendor or supplier issues, pandemics, government shutdowns or closures, regulatory changes, electrical or power outages, Internet failures, 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.
13.5 Governing Law; Jurisdiction. The laws of California without reference to conflict of law rules governs this Agreement and any dispute of any sort that might arise between the parties. The United Nations Convention for the International Sale of Goods does not apply to this Agreement. Any legal suit, action, or proceeding arising out of, or related to, this Agreement or the R-Stor Service shall be instituted exclusively in the federal courts of the United States or the courts of the State of California, in each case located in the County of Santa Clara although we retain the right to bring any suit, action, or proceeding against you for breach of this Agreement in your country of residence or any other relevant country. You waive any and all objections to the exercise of jurisdiction over you by such courts and venue in such courts.
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. For clarity, you are solely responsible for compliance related to the manner in which you choose to use the R-Stor Service, including your transfer and processing of Your Content, the provision of Your Content to Authorized Users, and the R-Stor 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.
13.7 Independent Contractors. Both parties 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.
13.8 Language. All communications and notices made or given according 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.
13.9 Confidentiality and Publicity. You may use R-Stor Confidential Information only in connection with your use of the R-Stor Service as permitted under this Agreement. You will not disclose R-Stor 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 R-Stor 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 concerning this Agreement or your use of the Service Offerings.
(a) To You. We may provide any notice to you under this Agreement by: (i) posting a notice on the R Stor website; or (ii) sending a message to the email address then associated with your account. You agree that all disclosures, notices, and communications are considered received by you within twenty-four (24) hours of the time posted to R-Stor’s website, or within twenty-four (24) hours of the time emailed to you. 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 receive the email.
(b) To Us. To give us notice under this Agreement, you must contact R-Stor as follows: (i) by email transmission to support; or (ii) by personal delivery, overnight courier, or registered or certified mail to either R-Stor Technologies, Inc. (if you are an entity located outside Europe) or R-Stor Technologies, B.V. (if you are an entity located in Europe), either to the attention of General Counsel/Members of the Board. Notices provided by personal delivery will be effective immediately. Notices provided by email transmission or overnight courier will be effective one (1) business day after they are sent. Notices provided registered or certified mail will be effective three (3) business days after they are sent.
13.11 No Third-Party Beneficiaries. Except for indemnitees, this Agreement does not create any third-party beneficiary rights in any individual or entity that is not a party to this Agreement.
13.12 No Waivers. The failure by either party to enforce any provision of this Agreement will not constitute a present or future waiver of such provision nor limit a party’s right to enforce such provision at a later time. All waivers by a party must be in writing to be effective.
13.13 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 the 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.
13.14 Marketing. Each party may use the other party’s name, trade name, trademarks, icons, and logos (collectively, the “Brands”) to refer publicly to the other, orally and in writing, as a customer/vendor of the other solely in connection with the R-Stor Service and only during the Term. Any other use of a party’s Brands requires such party’s prior written consent.
- Export Controls. Your use of the R-Stor Service is subject to compliance with the United States and other applicable export control and trade sanctions laws, rules, and regulations (collectively, “Export Control Laws”). You will not export, re-export, download, or otherwise transmit the R-Stor Service, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, you acknowledge that the R-Stor Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (collectively, “Restricted Party Lists”). By purchasing the R-Stor Service, you represent and warrant that you are not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the R-Stor Service may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the R-Stor Service, including your transfer and processing of Your Content and the region in which any of the foregoing occur.
- Electronic Communications. By using R-Stor Service, you acknowledge that we communicate with you electronically to the email address provided in your User Account. It is your responsibility to keep your email address current for notice purposes. For contractual purposes, you (a) consent to receive communications from R-Stor in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that R-Stor provides to you electronically satisfy any legal requirement that such communications would satisfy if it were to be in writing.
- Contact Us. To contact R-Stor regarding this Agreement (i) email R-Stor at firstname.lastname@example.org or (ii) write to Sales at R-Stor Technologies, Inc., at the address set forth in R-Stor’s contact page on the R-Stor website.