Appirio Cloud Storage Subscription Agreement
Welcome
This document lays out the terms and conditions by which Appirio agrees to provide you with our Cloud Storage offering. By registering for and using our application, you agree to the terms and conditions laid out in this Agreement including any materials available on the Appirio website incorporated by reference herein (the "agreement") governing your use of Appirio’s Cloud Storage offering, (the "service"). If you are entering into this agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "you" or "your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the service.
1. Privacy & Security; Disclosure
Appirio's privacy and security policies may be viewed at http://www.appirio.com/privacy. Appirio reserves the right to modify its privacy and security policies in its reasonable discretion from time to time. Note that because the Service is a hosted, online application, Appirio occasionally may need to notify all users of the Service of important announcements regarding the operation of the Service. If you become a paying customer of the Service, you agree that Appirio can disclose the fact that you are a paying customer.
2. License Grant & Restrictions
Appirio hereby grants you a non-exclusive, non-transferable, worldwide right to use the Service, solely for your own internal business purposes, subject to the terms and conditions of this Agreement. All rights not expressly granted to you are reserved by Appirio and its licensors.
You may not access the Service if you are a direct competitor of Appirio, except with Appirio's prior written consent. In addition, you may not access the Service for purposes of monitoring its availability, performance or functionality, or for any other benchmarking or competitive purposes.
You shall not (i) license, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Service or the Content in any way; (ii) modify or make derivative works based upon the Service or the Content; (iii) create Internet "links" to the Service or "frame" or "mirror" any Content on any other server or wireless or Internet-based device; or (iv) reverse engineer or access the Service in order to (a) build a competitive product or service, (b) build a product using similar ideas, features, functions or graphics of the Service, or (c) copy any ideas, features, functions or graphics of the Service.
You may use the Service only for your internal business purposes and shall not: (i) use it to send spam or otherwise duplicative or unsolicited messages in violation of applicable laws; (ii) send or store infringing, obscene, threatening, libelous, or otherwise unlawful or tortious material, including material harmful to children or violative of third party privacy rights; (iii) send or store material containing software viruses, worms, Trojan horses or other harmful computer code, files, scripts, agents or programs; (iv) interfere with or disrupt the integrity or performance of the Service or the data contained therein; or (v) attempt to gain unauthorized access to the Service or its related systems or networks.
3. Your Responsibilities
You are responsible for all activity occurring under your User accounts and shall abide by all applicable local, state, national and foreign laws, treaties and regulations in connection with your use of the Service, including those related to data privacy, international communications and the transmission of technical or personal data. You shall notify Appirio immediately of any unauthorized use any account or any other known or suspected breach of security
4. Account Information and Data
Appirio does not own any data, information or material that you submit to the Service in the course of using the Service ("Customer Data"). You, not Appirio, shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Customer Data, and Appirio shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Customer Data. In the event this Agreement is terminated (other than by reason of your breach), Appirio will make available to you a file of the Customer Data within 7 days of termination if you so request at the time of termination. Appirio reserves the right to withhold, remove and/or discard Customer Data for any breach, including, without limitation, your non-payment after 30 days from the date of termination.
5. Intellectual Property Ownership
Appirio alone (and its licensors, where applicable) shall own all right, title and interest, including all related Intellectual Property Rights, in and to the Appirio Technology, the Content and the Service and any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by you or any other party relating to the Service. This Agreement is not a sale and does not convey to you any rights of ownership in or related to the Service, the Appirio Technology or the Intellectual Property Rights owned by Appirio. The Appirio name, the Appirio logo, and the product names associated with the Service are trademarks of Appirio or third parties, and no right or license is granted to use them.
If Appirio is in material breach of this agreement and is unable for a period of 30 days to cure this breach and provide the Service as agreed on the Order Form, Appirio agrees to assign you a worldwide, non-exclusive, non-transferable license to use the Intellectual Property of the Service, and provide you with the details of this Intellectual Property, including source code, solely for your own internal business purposes to enjoy the benefits of the Service.
6. Third Party Interactions
Appirio provides a service that permits you to connect with other websites on the Internet, and other websites may contain links to the Appirio website. These third party businesses and websites are not under our control and are accessed or used entirely at the user's own risk. Appirio expressly disclaims any responsibility or liability for the privacy, security or business practices of, or the content, information or data made available by, such third parties.
7. Charges and Payment of Fees
You shall pay all fees or charges to your account in accordance with the fees, charges, and billing terms in effect at the time a fee or charge is due and payable. Payments must be made in advance. All payment obligations are noncancelable and all amounts paid are nonrefundable. You are responsible for paying for the Service ordered for the entire License Term, regardless of your use of the Service. You must provide Appirio with valid credit card or approved purchase order information as a condition to signing up for the Service. Appirio reserves the right to modify its fees and charges and to introduce new charges at any time, upon at least 30 days prior notice to you, which notice may be provided by e-mail. All pricing terms are confidential, and you agree not to disclose them to any third party.
8. Data Storage
You are entitled to the amount of storage listed on your Order Form. If the amount of storage required exceeds these limits, you will be unable to store additional data until you have reduced the storage required or upgraded your subscription. Appirio will use reasonable efforts to notify you when your storage used reaches approximately 90% of the maximum.
9. Billing and Renewal
Appirio charges and collects in advance for use of the Service. Appirio will automatically renew and bill your credit card or issue an invoice to you at the end of the term of your service. The renewal charge will equal to the charge of the prior term, unless Appirio has given you at least 30 days prior written notice of a fee change, which shall be effective upon renewal and thereafter. Appirio's fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties, excluding only United States (federal or state) taxes based solely on Appirio's income.
You agree to provide Appirio with complete and accurate billing and contact information. This information includes your legal company name, street address, e-mail address, and name and telephone number of an authorized billing contact and License Administrator. You agree to update this information within 30 days of any change to it. If the contact information you have provided is false or fraudulent, Appirio reserves the right to terminate your access to the Service in addition to any other legal remedies.
If you believe your bill is incorrect, you must contact us in writing within 60 days of the invoice date of the invoice containing the amount in question to be eligible to receive an adjustment or credit.
10. Non-Payment and Suspension
In addition to any other rights granted to Appirio herein, Appirio reserves the right to suspend or terminate this Agreement and your access to the Service if your account becomes delinquent (falls into arrears). Delinquent invoices (accounts in arrears) are subject to interest of 1.0% per month on any outstanding balance, or the maximum permitted by law, whichever is less, plus all expenses of collection. You will continue to be charged for the Service during any period of suspension. If you or Appirio initiates termination of this Agreement, you will be obligated to pay the balance due on your account computed in accordance with the Charges and Payment of Fees section above. You agree that Appirio may charge such unpaid fees to your credit card or otherwise bill you for such unpaid fees.
Appirio reserves the right to impose a reconnection fee in the event you are suspended and thereafter request access to the Service. You agree and acknowledge that Appirio has no obligation to retain Customer Data and that such Customer Data may be irretrievably deleted if your account is 30 days or more delinquent.
11. Term and Renewals
This Agreement commences on the Effective Date. The Initial Term of 1 year or 1 month as mutually agreed upon an Order Form. Upon the expiration of the Initial Term, this Agreement will automatically renew for successive renewal terms equal in duration to the Initial Term at Appirio's then current fees. Either party may terminate this Agreement or reduce subscription level, effective only upon the expiration of the then current License Term, by notifying the other party at least five (5) business days prior to the date of the invoice for the following term.
12. Termination for Cause
Any breach of your payment obligations or unauthorized use of the Appirio Technology or Service will be deemed a material breach of this Agreement. Appirio, in its sole discretion, may terminate your account or use of the Service if you breach or otherwise fail to comply with this Agreement. In addition, Appirio may terminate a free account at any time in its sole discretion. You agree and acknowledge that Appirio has no obligation to retain the Customer Data, and may delete such Customer Data, if you have materially breached this Agreement, including but not limited to failure to pay outstanding fees, and such breach has not been cured within 30 days of notice of such breach.
13. Representations & Warranties
Each party represents and warrants that it has the legal power and authority to enter into this Agreement. Appirio represents and warrants that it will provide the Service in a manner consistent with general industry standards reasonably applicable to the provision thereof and that the Service will perform substantially in accordance with the online Appirio help documentation under normal use and circumstances. You represent and warrant that you have not falsely identified yourself nor provided any false information to gain access to the Service and that your billing information is correct.
14. Mutual Indemnification
You shall indemnify and hold Appirio, its licensors and each such party's parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that use of the Customer Data infringes the rights of, or has caused harm to, a third party; (ii) a claim, which if true, would constitute a violation by you of your representations and warranties; or (iii) a claim arising from the breach by you or your Users of this Agreement, provided in any such case that Appirio (a) gives written notice of the claim promptly to you; (b) gives you sole control of the defense and settlement of the claim (provided that you may not settle or defend any claim unless you unconditionally release Appirio of all liability and such settlement does not affect Appirio's business or Service); (c) provides to you all available information and assistance; and (d) has not compromised or settled such claim.
Appirio shall indemnify and hold you and your parent organizations, subsidiaries, affiliates, officers, directors, employees, attorneys and agents harmless from and against any and all claims, costs, damages, losses, liabilities and expenses (including attorneys' fees and costs) arising out of or in connection with: (i) a claim alleging that the Service directly infringes a copyright, a U.S. patent issued as of the Effective Date, or a trademark of a third party; (ii) a claim, which if true, would constitute a violation by Appirio of its representations or warranties; or (iii) a claim arising from breach of this Agreement by Appirio; provided that you (a) promptly give written notice of the claim to Appirio; (b) give Appirio sole control of the defense and settlement of the claim (provided that Appirio may not settle or defend any claim unless it unconditionally releases you of all liability); (c) provide to Appirio all available information and assistance; and (d) have not compromised or settled such claim. Appirio shall have no indemnification obligation, and you shall indemnify Appirio pursuant to this Agreement, for claims arising from any infringement arising from the combination of the Service with any of your products, service, hardware or business process(s).
15. Disclaimer of Warranties
APPIRIO AND ITS LICENSORS MAKE NO REPRESENTATION, WARRANTY, OR GUARANTY AS TO THE RELIABILITY, TIMELINESS, QUALITY, SUITABILITY, TRUTH, AVAILABILITY, ACCURACY OR COMPLETENESS OF THE SERVICE OR ANY CONTENT. APPIRIO AND ITS LICENSORS DO NOT REPRESENT OR WARRANT THAT (A) THE USE OF THE SERVICE WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA, (B) THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE, (D) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION, OR OTHER MATERIAL PURCHASED OR OBTAINED BY YOU THROUGH THE SERVICE WILL MEET YOUR REQUIREMENTS OR EXPECTATIONS, (E) ERRORS OR DEFECTS WILL BE CORRECTED, OR (F) THE SERVICE OR THE SERVER(S) THAT MAKE THE SERVICE AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICE AND ALL CONTENT IS PROVIDED TO YOU STRICTLY ON AN "AS IS" BASIS. ALL CONDITIONS, REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT OF THIRD PARTY RIGHTS, ARE HEREBY DISCLAIMED TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW BY APPIRIO AND ITS LICENSORS.
16. Internet Delays
APPIRIO'S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. APPIRIO IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
17. Limitation of Liability
IN NO EVENT SHALL EITHER PARTY'S AGGREGATE LIABILITY EXCEED THE AMOUNTS ACTUALLY PAID BY AND/OR DUE FROM YOU IN THE TWELVE (12) MONTH PERIOD IMMEDIATELY PRECEDING THE EVENT GIVING RISE TO SUCH CLAIM. IN NO EVENT SHALL EITHER PARTY AND/OR ITS LICENSORS BE LIABLE TO ANYONE FOR ANY INDIRECT, PUNITIVE, SPECIAL, EXEMPLARY, INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES OF ANY TYPE OR KIND (INCLUDING LOSS OF DATA, REVENUE, PROFITS, USE OR OTHER ECONOMIC ADVANTAGE) ARISING OUT OF, OR IN ANY WAY CONNECTED WITH THIS SERVICE, INCLUDING BUT NOT LIMITED TO THE USE OR INABILITY TO USE THE SERVICE, OR FOR ANY CONTENT OBTAINED FROM OR THROUGH THE SERVICE, ANY INTERRUPTION, INACCURACY, ERROR OR OMISSION, REGARDLESS OF CAUSE IN THE CONTENT, EVEN IF THE PARTY FROM WHICH DAMAGES ARE BEING SOUGHT OR SUCH PARTY'S LICENSORS HAVE BEEN PREVIOUSLY ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
18. Additional Rights
Certain states and/or jurisdictions do not allow the exclusion of implied warranties or limitation of liability for incidental, consequential or certain other types of damages, so the exclusions set forth above may not apply to you.
19. Local Laws and Export Control
This site provides services and uses software and technology that may be subject to export controls. The user of this site ("User") acknowledges and agrees that the site shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States, Switzerland and/or the European Union maintains an embargo (collectively, "Embargoed Countries"), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury's List of Specially Designated Nationals or the U.S. Department of Commerce's Table of Denial Orders (collectively, "Designated Nationals"). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using the Service, you represent and warrant that you are not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. You agree to comply strictly with all U.S., Swiss and European Union export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required.
This site may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000
Appirio and its licensors make no representation that the Service is appropriate or available for use in other locations. If you use the Service from outside the United States of America, you are solely responsible for compliance with all applicable laws, including without limitation export and import regulations of other countries. Any diversion of the Content contrary to United States law is prohibited. None of the Content, nor any information acquired through the use of the Service, is or will be used for nuclear activities, chemical or biological weapons, or missile projects, unless specifically authorized by the United States government or appropriate European body for such purposes.
20. Modification to Terms
Appirio reserves the right to modify the terms and conditions of this Agreement or its policies relating to the Service at any time, effective upon posting of an updated version of this Agreement on the Service. You are responsible for regularly reviewing this Agreement. Continued use of the Service after any such changes shall constitute your consent to such changes.
21. Jurisdiction and Other
This Agreement shall be governed by California law and controlling United States federal law, without regard to the choice or conflicts of law provisions of any jurisdiction, and any disputes, actions, claims or causes of action arising out of or in connection with this Agreement. The Service shall be subject to the exclusive jurisdiction of the state and federal courts located in San Francisco, California. No text or information set forth on any other purchase order, preprinted form or document (other than an Order Form, if applicable) shall add to or vary the terms and conditions of this Agreement. If any provision of this Agreement is held by a court of competent jurisdiction to be invalid or unenforceable, then such provision(s) shall be construed, as nearly as possible, to reflect the intentions of the invalid or unenforceable provision(s), with all other provisions remaining in full force and effect. No joint venture, partnership, employment, or agency relationship exists between you and Appirio as a result of this agreement or use of the Service. The failure of Appirio to enforce any right or provision in this Agreement shall not constitute a waiver of such right or provision unless acknowledged and agreed to by Appirio in writing. This Agreement, together with any applicable Order Form, comprises the entire agreement between you and Appirio and supersedes all prior or contemporaneous negotiations, discussions or agreements, whether written or oral, between the parties regarding the subject matter contained herein.
22. Definitions
As used in this Agreement and in any Order Forms now or hereafter associated herewith: "Agreement" means these terms of use, any Order Forms, whether written or generated online by Appirio, and any materials available on the Appirio website specifically incorporated by reference herein, as such materials, including the terms of this Agreement, may be updated by Appirio from time to time in its sole discretion; "Content" means the audio and visual information, documents, software, products and services contained or made available to you in the course of using the Service; "Customer Data" means any data, information or material provided or submitted by you to the Service in the course of using the Service; "Effective Date" means the earlier of either the date this Agreement is accepted by selecting the "I Accept" option presented upon installing the Service or the date you begin using the Service; "Initial Term" means the contract term, beginning on the contract start date and ending on the contract end date, specified on the applicable Order Form; "Intellectual Property Rights" means unpatented inventions, patent applications, patents, design rights, copyrights, trademarks, service marks, trade names, domain name rights, mask work rights, know-how and other trade secret rights, and all other intellectual property rights, derivatives thereof, and forms of protection of a similar nature anywhere in the world; "License Administrator(s)" means those people designated by you who are authorized to purchase online using the Order Center or by executing written Order Forms and to administer your use of the Service; "License Term(s)" means the period(s) during which you are licensed to use the Service pursuant to the Order Form(s); "Order Form(s)" means the form evidencing the initial subscription for the Service and any subsequent order forms submitted online or in written form, specifying, among other things, the type of subscription contracted for, the applicable fees, the billing period, and other charges as agreed to between the parties, each such Order Form to be incorporated into and to become a part of this Agreement (in the event of any conflict between the terms of this Agreement and the terms of any such Order Form, the terms of this Agreement shall prevail); "Online Order Center" means Appirio's online application that allows the License Administrator designated by you to, among other things, upgrade your Service; "Appirio Technology" means all of Appirio's proprietary technology (including software, hardware, products, processes, algorithms, user interfaces, know-how, techniques, designs and other tangible or intangible technical material or information) made available to you by Appirio in providing the Service; "Service(s)" means the specific edition of Appirio's online storage offering identified during the ordering process, developed, operated, and maintained by Appirio, or ancillary online or offline products and services provided to you by Appirio, to which you are being granted access under this Agreement; "User(s)" means your employees, representatives, consultants, contractors or agents who are authorized to use the Service.
Questions or Additional Information:
If you have questions regarding this Agreement or wish to obtain additional information, please send an e-mail to products@appirio.com
