License Agreement

ARQ 6 AND ARQ 7 LICENSE AND SERVICE AGREEMENT

Last Updated: December 2020

This Arq 6 and Arq 7 License and Service Agreement (the “Agreement”) governs your use of Arq 6 (including any updates, upgrades, or versions) and/or Arq. 7 (and any updates, upgrades, or versions) (collectively the “Software”) and related services (collectively the “Software Services”) offered by Haystack Software LLC (the “Company”). The term of this Agreement shall be the duration of your use of the Software Services. By registering a Customer Account (as defined below) or using the Software and Software Services, you agree to this License and Service Agreement, including terms that limit our liability (see Section 12), require individual arbitration for any potential legal dispute (see Section 15) and authorize contracting through electronic systems (see Section 18).

PLEASE READ THIS ARQ 6 AND ARQ 7 LICENSE AND SERVICE AGREEMENT CAREFULLY. BY DOWNLOADING, INSTALLING OR USING THE SOFTWARE OR SOFTWARE SERVICE YOU INDICATE ACCEPTANCE OF AND AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU DO NOT AGREE TO THESE TERMS AND CONDITIONS, DO NOT DOWNLOAD, INSTALL OR USE THE SOFTWARE OR SOFTWARE SERVICE. IF CUSTOMER DOES NOT AGREE TO BE BOUND BY ALL THE TERMS OF THIS AGREEMENT, COMPANY IS UNWILLING TO GRANT CUSTOMER ANY RIGHTS TO USE THE SOFTWARE OR SOFTWARE SERVICE AND CUSTOMER MUST STOP USING THE SOFTWARE SERVICE.

Parties to the Agreement. This Agreement is a legal contact between Haystack Software, LLC (the Company”, “we”, “our”, or “us”) and you (“you”,” your”, “Customer”). You represent and warrant to us that (a) you are at least eighteen (18) years of age; (b) You are eligible to register and use the Software Services and have the right to use the Software or Software Services and have the right, power, and ability to enter into and perform under the Agreement and (c) your use of the Software and Software Services will be in compliance with the terms and conditions of the Agreement and all appliable laws. If you are acting on behalf of a third party (“Third Party End-user”), you represent and warrant that: (a) you are authorized to make the purchase and enter into this Agreement on behalf of the Third-Party End-User as that party’s agent and (b) that the Third-Party End-User is bound by this Agreement. If you enter into this Agreement on behalf of a Third-Party End-User, you agree that you are jointly and severally liable for any breach of this Agreement resulting from your acts and omissions, or the acts and omissions of the Third-Party End-User or any Authorized User (as defined below) of the Third-Party End-User.
Customer Account Registration. You are required to register an account with us (a “Customer Account”) in order to use the Software and Software Services. During your registration of a Customer Account, you agree to provide accurate and complete information in response to our questions, and you further agree to promptly update this information should it change. In connection with your use of the Customer Account, you may authorize itself and others (collectively, “Authorized Users”) to use the Software and Software Services on Customer’s behalf. Each Authorized User will establish or be provided with a username and password, and may also establish or be provided with other access credentials, such as an encryption key (collectively, “Access Credentials”). You will and will ensure that each of your Authorized Users will keep the Access Credentials confidential and ensure that they are not disclosed to any third party. You are responsible for the acts and omissions of your Authorized Users. You, and not Company, are fully responsible for all activity that occurs under your Customer Account using the Access Credentials, including any loss or deletion of Customer Content (as defined below). You acknowledge that your Authorized Users will have full access to and management privileges of your Customer Account(s), Customer Content and any personal data associated with your Customer Account(s). We reserve the right to suspend or terminate the Customer 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 Access Credentials. You agree to, and will ensure that each Authorized User will, notify us at support@arqbackup.com immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.
Free Services. We may offer free trials of the Software and Software Services (“Free Services”). The Free Services require an active Customer Account and are subject to the time limits that are made known to you via email or the Software’s Authorized User’s interface. You acknowledge and agree that: (a) your use of the Free Services is for the sole purpose of evaluating and testing the Software and Software Services and providing feedback to us; (b) your use of the Free Services will be in compliance with this Agreement and applicable laws and regulations; (c) you will not store Customer Content (as defined below) that is sensitive in nature, including personally identifiable information, Protected Health Information or sensitive financial information with the Free Services; and (d) you will inform your Authorized Users of the nature of the limitations on use of the Free Services. Access to Evaluation Services associated with your Customer Account that remain inactive for a period of thirty (30) calendar days or more may be terminated and your Customer Content irretrievably deleted. We assume no liability for the loss of any such Customer Content. Company, in its sole discretion, may discontinue the Free Services at any time, at which point your access to the Free Services will end and any Customer Content shall be irretrievably deleted.
Backup Services.
1. Arq 6 Third-Party Cloud Backup Services. Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use the Software and Software Services to backup and store Customer Content (as defined below) with a third-party cloud service provider that you have selected. (“Third-Party Backup Provider(s)”). Customer acknowledges that in order to use the Software Services, there may be additional applicable terms and conditions including those which may establish a direct contractual relationship between Customer and the Third-Party Backup Provider(s). Customer agrees to allow the selected Third-Party Backup Provider(s) to access the Customer’s Content as required for the interoperation of the Third-Party Backup Provider(s) with the Software and the Company’s Software Services. Customer acknowledges Company is not responsible for any disclosure, modification or deletion of Customer Content resulting from access or storage by a Third-Party Backup Provider and/or the interoperability between the Software, the Software Service and the Third-Party Backup Provider.
2. Arq 7 Cloud Backup Services. Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use the Software and Software Services to access and use the Company’s cloud backup services (the “Arq Cloud Backup”).
3. Hosting Center Facilities. The hosting center facilities supporting the Software and Software Service, the Customer’s Content, Arq Cloud Backup, and the Third-Party Backup Provider(s) shall be provided for and managed by a third-party vendor (“Third-Party Vendor”) not a party to this Agreement. Company shall not be liable in respect of any breach, loss, damage, corruption, or interruption to the Customer Content, the Software Service, Arq Cloud Backup or the Third- Party Backup Provider(s) that result from the Third-Party Vendor. Customer shall immediately notify Company, in writing of any such error, loss, breach, damage or interruption. Company shall not be liable for any loss, damage or expense whatsoever and howsoever arising from any breach or error, loss, damage, defect or interruption to the Arq Cloud Backup, the Software Service and/or the Customer Content caused by the Third-Party Vendor or the Third-Party Backup Provider(s)
4. Software Client. The Software and the Software Services require that software be installed within your Environment (as defined below) (the “Client Software”). Subject to the terms and conditions of this Agreement, the Company grants to you an exclusive, non- transferable, revocable, fee-bearing, limited license (without the right to sublicense) to install, execute and use the Client Software solely: (i) in object code format;(ii) for your personal 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 this Agreement and any other document applicable to the Software Services. Your license in the Client Software is co-terminus with your right to access the Software Services for which the Client Software is required.
Access Authorization. Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use customer portals (the “Customer Portals”) that are made available to you in connection with the Software and Software Services, solely for your personal use and solely in accordance with this Agreement. Your authorization to use the Customer Portals is non-exclusive, non-transferable, non-sublicensable and terminable.
Customer Acknowledgement and Obligations. You acknowledge and agree to the following:
1. License. You grant to Company a worldwide, non-exclusive, royalty-free, fully-paid up, transferable and sublicensable right to use, reproduce and store the Customer Content for the purpose of performing this Agreement, improving the Software and Software Services, and as otherwise provided in our Privacy Policy, located at: https://www.arqbackup.com/privacy/ You retain all rights in the Customer Content, subject to the rights granted to Company in this Agreement. You may modify or remove the Customer Content via the Customer Account or your deletion of the Customer Account on the devices being backed up. Customer Content will be irretrievably deleted upon (i) you, your Authorized User’s, or any third-party’s deletion of Customer Content; (ii) cancellation, termination or non-renewal of the Customer Account or subscription to the Products and Services; or (iii) in accordance with the terms and conditions of your agreement with the Third-Party Backup Provider(s). Company may remove Customer Content at any time, for any reason, with or without notice.
2. Requirements and Environment. You are solely responsible for ensuring that you maintain and operate the information technology infrastructure from which the applicable Software and Software Service copies, maintains and transfers the Customer Content, including the databases, applications, files, software, computer, server, tablet, smartphone or any other device registered with the Company (collectively, your “Environment”).
3. Customer Conduct. The Software and Software Services include functionality that enables you and your Authorized Users to backup, copy, maintain, sync, transfer and upload text, graphics, photos, videos, presentations and other materials or information (“Customer Content”) pursuant to the terms of this Agreement. You represent and warrant that your Customer Content and you and your Authorized User’s, use of the Company’s website, portals, Software and Software Services, and the technology related thereto, shall not (i) interfere with the proper working of the Software and Software Services or impose an unreasonably large load on Company’s 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’s 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.
4. User Restrictions on Intellectual Property. You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i) access or use the Software and Software Services in any manner or for any purpose other than expressly permitted by this Agreement and the Company’s publicly available policies; (ii) change, modify or otherwise create derivative works of all or any portion of the Software and Software Services; (iii) modify, disassemble, decompile or reverse engineer any part of the Software and Software Services or apply any other process or procedure to derive source code of any software included in the Software and Software Services (except solely to the extent permitted by applicable law); (iv) access or use the Software and Software Services in a way intended to avoid exceeding usage limits or quotas; (v) use the Software and Software Services 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 Software and Software Services, or otherwise use any tool to enable features or functionalities that are otherwise disabled in the Software and Software Services; (vii) resell or sublicense the Software and Software Services (except as solely to the extent permitted by applicable law); or (viii) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the Software and Software Services.
5. Changes to Software, Software Services, and Third-Party Backup Provider(s). You acknowledge and agree that Company may, at any time and without notice to you, discontinue, suspend or modify the Software, Software Services, available Third-Party Backup Providers, any functionality or feature of the Software and Software Services or the availability of the Software, the Software Services, and the Third-Party Backup Provider(s) on any particular device or hardware.
6. Law Enforcement. If Company reasonably suspects that Customer’s Account has been used for an unauthorized, illegal or criminal purpose, or law enforcement requests access to Customer’s Account or Customer Content via a validly issued subpoena, an investigative demand or warrant, you hereby give Company express authorization to share information about you, your Customer Account, Customer Content, and any of its transactions with law enforcement.
Fees and Payment.
1. Fees. You agree to pay all fees, charges and expenses (collectively, “Fees”) for the Software and Software Services as specified at the time of purchase. Unless otherwise indicated at the time of purchase, all Fees exclude sales, use, value-add and similar taxes (collectively, “Sales and Use Taxes”), import tariffs, and shipping and handling fees, which shall be your responsibility. You shall indemnify, defend and hold Haystack Software harmless for any liability or expense Haystack Software may incur in connection with the failure to pay, or collection of any Fees, Sales and Use Taxes, import tariffs or shipping and handling fees.
2. Payment and Credit Cards. For Software and Software Services purchased directly from Company’s website or portals, Company may utilize a third party to process credit card payments on Company’s behalf (“Payment Provider”). 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. You agree to provide Company with a valid credit card (Visa, MasterCard, or any other card accepted by the Company) (the “Card-on-File”) as a condition to such transaction. By providing the Card-on-File you authorize the Company through any Payment Provider to immediately charge the Fees to the Card-On-File for the Initial Term and any Renewal Term (as defined herein).
3. Subscription Renewals. You acknowledge and agree that your Card-on-File will be automatically charged recurring renewal Fees on the first day of the Renewal Term (as defined herein) unless you cancel your Subscription or change your auto renewal preferences through the password-protected customer portal. If you cancel a Subscription (as defined herein) you will continue to have access to the applicable Products and Services through the end of the then-current term, but you will not be entitled to a refund or credit for any Fees already due or paid. We reserve the right to increase the Fees annually. You agree to notify us of any changes required to keep your Card-on-File current and accurate. Your failure to maintain your Card-on-File may result in an interruption of your use of the Products and Services.
Term and Termination.
1. Term. The term of your access to the Software and Software Services (a “Subscription”) will continue for the period identified at the time of your purchase (the “Initial Term”). The Subscription will automatically renew for successive terms equal to the applicable Initial Term (each a “Renewal Term”).
2. Termination for Material Breach. Company may terminate this Agreement and your Subscription at its discretion, effective immediately, for non-payment or if you materially breach any provision of this Agreement and do not substantially cure the breach with thirty (30) days after receiving notice.
3. Termination Upon Bankruptcy or Insolvency. Company may, at its option, terminate this Agreement immediately upon written notice to you, in the event: (i) you become insolvent or unable to pay your debts when due; (ii) you file a petition in bankruptcy, reorganization or similar proceeding; or, if filed against you, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of your creditors.
4. Suspension. Company may, at any time and in its sole discretion, suspend access to any Software and Software Services for one or all of your Authorized Users, including but not limited to, the following reasons: (i) a threat to the security or integrity of the Software and Software Services; (ii) you have materially breached this Agreement or (iii) any amount due under this Agreement is not received by Company within fifteen (15) days after it was due.
5. Effects of Termination. Upon termination or expiration of this Agreement or any Subscription for any reason: (i) any amounts owed to Company before such termination or expiration will be immediately due and payable; (ii) all license and access rights granted will immediately cease to exist; (iii) access to Customer Content will immediately cease, and (iv) all Customer Content will be irretrievably deleted. Those provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement or a Subscription shall so survive
Security. The Company has implemented administrative, physical and technical safeguards designed to secure your Customer account and Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the Customer Account and Customer Content for improper purposes. Company is not responsible for the safety or security of your Customer Content while stored with the Third-Party Backup Provider(s) or the Arq Cloud Backup. You provide your Customer Account details and Customer Content to us and the Third-Party Backup Provider(s) or at your own risk. You are solely responsible for safeguarding, and ensuring that your Authorized Users safeguard, the Access Credentials.
General Disclaimers and Limited Warranty. THE USE OF “COMPANY” IN SECTION 9, 10, 11, 12 AND 13 MEANS HAYSTACK SOFTWARE, LLC, ITS AFFILIATES, PARTNERS, PRCESSORS, SUPPLIERS AND LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, DIRECTORS AND EMPLOYEES). THE SOFTWARE AND SOFTWARE SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, THE COMPANY SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE. COMPANY DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE SOFTWARE AND SOFTWARE SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE SOFTWARE AND SOFTWARE SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE SOFTWARE AND SOFTWARE SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT, THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE SOFTWARE AND SOFTWARE SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE SOFTWARE AND SOFTWARE SERVICES GENERALLY WILL BE SECURE. COMPANY DOES NOT WARRANT THAT THE SOFTWARE AND SOFTWARE SERVICES: (i) WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS OR THOSE OF YOUR AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR YOUR AUTHORIZED USERS
Specific Disclaimers.
1. YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE SOFTWARE AND SOFTWARE SERVICES
2. YOUR ACCESS TO AND USE OF THE SOFTWARE AND SOFTWARE SERVICES ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE SOFTWARE AND SOFTWARE SERVICES, AND THE LOSS OR DAMAGE OF YOUR CUSTOMER CONTENT
3. DEPENDING ON THE SOFTWARE AND SOFTWARE SERVICES YOU CHOOSE TO UTILIZE, YOUR CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
  1. THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) YOUR CUSTOMER CONTENT;
  2. FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE SOFTWARE AND SOFTWARE SERVICES DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
  3. YOU OR ANY THIRD-PARTY DELETE CERTAIN CUSTOMER CONTENT FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO COMPANY’S OR YOUR OWN DATA RETENTION POLICIES, OR YOU OR ANY THIRD-PARTY DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
  4. YOU OR ANY THIRD-PARTY MOVE CUSTOMER CONTENT TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING;
  5. CUSTOMER’S CONTENT IS CORRUPTED;
  6. YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITIENT OR SLOW INTERNET CONNECTION;
  7. ANY HARDWARE PROVIDED TO YOU AS PART OF THE SOFTWARE AND SOFTWARE SERVICES IS UNABLE TO CONNECT TO YOUR DEVICES AND YOU DO NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
  8. YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH THE COMPANY ‘S SERVERS OR NETWORK OR THE THIRD-PARTY VENDORS SERVERS OR NETWORK;
  9. YOU FAIL TO FOLLOW THE COMPANY’S OR THE THIRD-PARTY VENDOR’S TECHNICAL REQUIREMENTS AND DOCUMENTATION FOR UTILIZING THE SOFTWARE AND SOFTWARE SERVICES, INCLUDING UPGRADING THE SOFTWARE AND SOFTWARE SERVICES OR FAILING TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
  10. YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO THE SOFTWARE OR SOFTWARE SERVICE OR THIRD-PARTY BACKUP PROVIDER(S) SERVICES, OR YOUR ACCESS TO THE SOFTWARE, SOFTWARE SERVICES OR THIRD-PARTY BACKUP PROVIDER(S) SERVICES HAVE OTHERWISE BEEN TERMINATED OR SUSPENDED
4. THE SOFTWARE AND SOFTWARE SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT THE COMPANY DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (a) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS ARE TRANSMITTED OVER THE INTERNET; (b) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS; (c) YOU ARE SOLELY RESPONSIBLE FOR MAINTAINING YOUR OWN INTERNET AND DATA CONNECTIONS; AND (d) COMPONENTS OF THE SOFTWARE AND SOFTWARE SERVICES THAT ARE ACCESSED OR USED THROUGH INTERNET CONNECTIONS MAY BE SUBJECT TO YOUR INTERNET SERVICE PROVIDER’S OR THIRD-PARTY BACKUP PROVIDER(S) FEES AND DOWNTIME. YOU ACKNOWLEDGE AND AGREE COMPANY IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.
5. YOU ACKNOWLEDGE AND AGREE TO THE COMPANY’S USE OF A THIRD-PARTY VENDOR CREDIT CARD PROCESSOR TO PROCESS AND STORE YOUR CREDIT CARD INFORMATION. IN THE EVENT OF A SECURITY BREACH INVOLVING YOUR CREDIT CARD INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE RECOURSE IS AGAINST THESE THIRD-PARTY VENDORS WHO PROCESS AND STORE YOUR CREDIT CARD INFORMATION, AND NOT THE COMPANY.
6. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE SOFTWARE AND SOFTWARE SERVICES. YOU ACKNOWLEDGE AND AGREE THAT COMPANY SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CUSTOMER ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE SOFTWARE AND SOFTWARE SERVICES.
7. YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY COMPANY OR ANY COMPANY EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF COMPANY’S OBLIGATIONS HEREUNDER.
Disclaimer of and Limitations on Certain Remedies.
1. No Consequential and Similar Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO YOUR USE OF THE SOFTWARE AND SOFTWARE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, GROSS NEGLIGENCE) OR OTHERWISE).
2. No Procurement of Substitute Services of Customer Content. IN NO EVENT WILL COMPANY BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT. UNDER NO CIRCUMSTANCES WILL COMPANY BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE SOFTWARE AND SOFTWARE SERVICES, YOUR CUSTOMER ACCOUNT OR THE CUSTOMER CONTENT.
3. Limitation on Aggregated Damages. TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF COMPANY FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY YOU TO COMPANY IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) FIVE HUNDRED DOLLARS ($500.00). IF THE SOFTWARE AND SOFTWARE SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN COMPANY WILL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.
4. 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 THE SOFTWARE AND SOFTWARE SERVICES AND COMPANY’S WILLINGNESS TO PROVIDE YOU THE SOFTWARE AND SOFTWARE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.
5. 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.
Indemnification. Customer shall, at its own expense, defend and hold harmless the Company from and against any and all claims, damages, losses, damages, judgments, tax assessments, penalties, interest or expenses (including without limitation reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to (a) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement; (b) your wrongful or improper use of the Software Services; (c) your violation of any third part’s rights, including without limitation any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; and (e) any other party’s access and/or use of the Software Services or using the Customer’s Access Credentials or the Access Credentials of any Authorized User. Company reserves the right at Customer’s expense, to assume the exclusive defense and control of any matter for which Customer is required to indemnify the Company and Customer agrees to cooperate with Company’s defense of these claims. Customer agrees not settle any matter without Company’s prior written consent. Company will use reasonable efforts to notify Customer of any such claim, action or proceeding upon becoming aware of it.
Export Controls and Trade Sanctions Compliance. Your use of the Software and Software Services is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations, including without limitation, the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and U.S. trade sanctions, administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”). You will not export, re-export, download or otherwise transmit the Software and Software Services, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, You acknowledge that the Software and Software 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 (including without limitation, the Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, and Foreign Sanctions Evaders List, administered by OFAC, and the Entity List, Denied Persons List, and Unverified List administered by BIS) (collectively, “Restricted Party Lists”). By purchasing the Software or the Software Services, you represent and warrant that you are not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Software and Software Services 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 Software and Software Services, including your transfer and processing of your Customer Data and the region in which any of the foregoing occur.
Dispute Resolution. Please read the following Section 15 carefully. (“Arbitration Agreement”). It requires you to arbitrate disputes with Company and limits the manner in which you seek relief from us. Please contact support@arqbackup.com within thirty days of your acceptance of this Agreement to opt-out of this Arbitration Agreement.
1. Applicability of Arbitration Agreement, Rules and Forum. You agree that any dispute or claim relating in any way to this Agreement, including but not limited to, arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach of this Agreement, your access or use of the Software and Software Services, or to any aspect of your relationship with Company, will be resolved by binding arbitration, rather than in court. This Arbitration Agreement will apply to all claims that arose or were asserted before the effective date of this Agreement. Such disputes and claims shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed “international” within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Boston, Massachusetts. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgement upon the arbitral award may be entered by any court having jurisdiction.
2. Waiver of Jury Trial. EXCEPT FOR SMALL CLAIMS ACTIONS, YOU AND COMPANY HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Company are instead electing that all claims and disputes will be resolved by final, binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration and court review of an arbitration award is subject to very limited review.
3. Waiver of Class or Consolidated Actions. IF YOU AGREE TO THIS ARBITRATION AGREEMENT AND/OR USE THE SOFTWARE AND SOFTWARE SERVICES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST COMPANY ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION AGREEMENT, YOU MAY BRING YOUR CLAIMS AGAINST COMPANY IN AN INDIVIDUAL ARBITRATION PROCEEDING. CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT PRIOR TO USING THE SOFTWARE AND SOFTWARE SERVICES, INCLUDING THIS ARBITRATION AGREEMENT. If a court decides that applicable law precludes the enforcement of any of this Section’s limitations as to a particular claim for relief then that claim (and only that claim) may be severed from the arbitration and may be brought in court, subject to your and Company’s rights to appeal the court’s decision. All other claims will be arbitrated.
4. Severability. Except as otherwise provided under the terms and conditions of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.
5. Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Company.
Governing Law. This Agreement and any dispute arising hereunder will be governed by the laws of the Commonwealth of Massachusetts and/or applicable federal law (including the Federal Arbitration Act) without regard to its choice of law or conflicts of law principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Company agree that all claims and disputes arising out of or relating to the Agreement, the Software, and/or the Software Services will be litigated exclusively in the state or federal courts located in Boston, Massachusetts.
Governing Language. You acknowledge that any translation of the English language version of this Agreement or any portion thereof is provided for convenience only, and that the English language version will take precedence over the translation in the event of any conflicts arising from translation.
Electronic Communications. By using the Software and Software Services, you acknowledge that we communicate with you electronically to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. For contractual purposes, you (a) consent to receive communications from Company in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Company provides to you electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Company’s website, or within twenty-four (24) hours of the time emailed to you.
Contacting Company. To contact Company regarding this agreement (i) email support@arqbackup.com or write to Haystack Software, LLC. 405 Waltham St., Suite 124, Lexington MA 02421, ATTN: Stefan Reitshamer, Manager.
Changes in this Agreement. We may amend this Agreement at any time in our sole discretion, by posting the revised version on our website and/or communicating it to you (each a “Revised Version”). The Revised Version will be effective thirty (30) days from the time it is posted. Your continued use of the Software and Software Services after the posting of a Revised Version constitutes your acceptance of such Revised Version
Assignment. This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment 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 acquires Company, or all, substantially all or a portion of Company’s assets, stock or business you agree your encrypted stored data and information that Company has collected from you, including personally identifiable information, may, and you consent to, the secure transfer of such information to such successor or assignee.
Force Majeure. Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, virus, government order, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.
Other Provisions. This Agreement and any other document referenced herein are a complete statement of the agreement between you and the Company regarding the Software and Software Services and the matters covered in this Agreement. If any provision of the Agreement is invalid or unenforceable under applicable law, then it will be changed, interpreted or severed, as appropriate to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of this Agreement will be deemed a further or continuing waiver of such term or any other term