This Yottabyte Storage Service Agreement (the “Agreement”) is a legal agreement between you and Yottabyte, LLC (“Yottabyte,” “we,” “us,” or “our”) regarding your use of the Yottabyte Cloud Storage Service (the “Service”). Your use of the Services is governed by this Agreement.
BY USING THE SERVICES YOU AGREE TO BE BOUND BY THE TERMS OF THIS AGREEMENT. BY USING THE SERVICES, YOU ACCEPT THESE TERMS AND REPRESENT THAT YOU ARE 18 YEARS OF AGE OR OLDER/OF LEGAL AGE TO ENTER INTO A BINDING AGREEMENT AND IF YOU ARE A CORPORATION, LIMITED LIABILITY COMPANY, GOVERNMENTAL ORGANIZATION, EDUCATIONAL INSTITUTION OR OTHER LEGAL ENTITY, YOU HAVE THE RIGHT, POWER AND AUTHORITY TO ENTER INTO THIS AGREEMENT ON BEHALF OF SUCH ENTITY AND BIND SUCH ENTITY TO ITS TERMS.
IF YOU DO NOT AGREE TO THE TERMS OF THIS AGREEMENT, YOU MAY NOT USE THE SERVICES.
1. Yottabyte Storage Service.
1.1 Your Use of The Services. You may use the Services in accordance with this Agreement and the terms located at Terms, all of which are incorporated herein by reference as such terms may be amended from time to time (the “Additional Terms”). Some use of our Service requires you to download a client software package (“Software”), the use of which is subject to the terms of the applicable end user license agreement that is part of the Additional Terms and is located at http://www.yottabyte.com/terms, the terms of which are incorporated herein by reference. Your license to use the Software is automatically revoked if you violate this Agreement in a manner that implicates our intellectual property rights. The Services may provide storage, retrieval, management and access features and functionality for your data, content and files (“Your Files”). You may not use the Service to store, transfer or distribute content of or on behalf of third parties, to operate your own file storage application or service, to sell, resell, lease, or the functional equivalent, the Services to a third party (unless expressly authorized by Yottabyte), attempt to reverse engineer the Services or any component thereof, attempt to create a substitute or similar service through use of, or access to, the Services, use the Services for purposes such as the operation of nuclear facilities, air traffic control, or life support systems, where the use or failure of the Services could lead to death, personal injury, or environmental, or use the Services to store or transfer any data that is controlled for export under applicable export control laws and regulations.
1.2 Acceptable Use Policy. You agree that you will not, and will not attempt to, misuse the Service, and will use the Service only in a manner consistent with Yottabyte’s Acceptable Use Policy located at AUP, which is incorporated by reference into this Agreement. You are solely responsible for Your Files and for complying with all applicable copyright and other laws, including import and export control laws and regulations, and with the terms of any licenses or agreements to which you are bound. You must ensure that Your Files are free from any malware, viruses, Trojan horses, spyware, worms, or other malicious or harmful code.
1.4 Account Security; Sharing Your Files. You are responsible for safeguarding the password that you use to access the Services and you agree not to disclose your password to any third party. You are responsible for any activity using your account, whether or not you authorized that activity. You should immediately notify Yottabyte of any unauthorized use of your account. You acknowledge that if you wish to protect your transmission of data or files to Yottabyte, it is your responsibility to use a secure encrypted connection to communicate with the Services. The Service may provide features that allow you to share Your Files with others. You may only share Your Files in which you have all necessary copyright and other rights. If you share a file, anyone with access to that file may view and download copies of the file. You are solely responsible for how you share Your Files and who may access Your Files that you share. You may not share files (a) that contain defamatory, threatening, abusive, pornographic, or otherwise objectionable material, (b) that advocate bigotry, hatred, or illegal discrimination, or (c) if sharing those files violates any law, any intellectual property, publicity, privacy, or other right of others, or any license or other agreement by which you are bound. You acknowledge that Yottabyte has no obligation to monitor any information on the Services and is not responsible for the accuracy, completeness, appropriateness, or legality of files, user posts, or any other information you may be able to access using the Services.
1.5 Changes to the Services or Additional Terms. We may change, discontinue, or deprecate any of the Services (including the Services as a whole) or change or remove features or functionality of the Services from time to time or change the terms and conditions found in the Additional Terms. We will notify you of any material change to or discontinuation of the Services or the Additional Terms by providing you with notice via e-mail using the e-mail address provided to us when you register for the Service. If we discontinue a Service for which you have paid a fee or if Yottabyte makes a material change to the Services or the Additional Terms, and both parties agree that such changes have a material adverse effect on the Services, then you may terminate this Agreement and request a pro-rata refund of any fees paid for your Service Plan based on the number of full months remaining in your Service Plan.
1.6 Services Limitations. The Service is offered to users in the United States only. We may restrict access from other locations. There may be limits on the types of content you can store using the Service, such as file types we do not support, and on the number or type of devices you can use to access the Service. If you exceed your account storage limit, including by downgrading or not renewing your account, you may no longer be able to access Your Files. We may impose other restrictions on use of the Service.
1.7 Other Content. The Services may contain links to third-party websites or resources. Yottabyte does not endorse and is not responsible or liable for their availability, accuracy, the related content, products, or services. You are solely responsible for your use of any such websites or resources. If Yottabyte provides you with any software under an open source license, there may be provisions in those licenses that expressly conflict with this Agreement or the Additional Terms, in which case the open source provisions will apply.
1.8 Third Party Requests. You are responsible for responding to any request from a third party for records relating to the use of the Services (“Third Party Requests”). Third Party Requests can be a lawful search warrant, court order, subpoena, other valid legal order, or written consent from you permitting the disclosure. Prior to responding to such Third Party Request, Yottabyte will, to the extent allowed by law and by the terms of the Third Party Request: (a) promptly notify you of its receipt of a Third Party Request using the contact information provided by you to Yottabyte when you register for your account; (b) comply with your reasonable requests regarding your efforts to oppose a Third Party Request; and (c) provide you with the information or tools required for you to respond to the Third Party Request. You will first seek to obtain the information required to respond to the Third Party Request on its own, and will contact Yottabyte only if you cannot reasonably obtain such information.
2. Accounts and Fees.
2.1 Accounts. You must register with Yottabyte to use the Service, and you agree to keep your registration information accurate, complete and up-to-date as long as you continue to use the Services. Yottabyte currently offers a free community beta edition account with limited storage capacity (“Free Account”) and various fee-bearing accounts offering larger storage capacities and other feature enhancements (“Paid Accounts”).
2.2 Fees. You agree to pay, and authorize Yottabyte to charge using your selected payment method, all fees associated with your use of the Services for the account type you have selected and agree to any applicable restrictions, including quotas on the amount of storage you are allowed to use. If you exceed any storage quota allocated to your account, you agree that Yottabyte may restrict your ability to store additional data until you either reduce your storage usage or agree to pay for additional storage under another type of account or option as may be made available by Yottabyte which may require the payment of additional fees. IF YOU USE A CREDIT CARD FOR PAYMENT AND YOUR ACCOUNT IS SET TO AUTO RENEWAL, YOU AUTHORIZE YOTTABYTE TO AUTOMATICALLY RENEW YOUR SUBSCRIPTION AND CHARGE THE THEN-CURRENT RENEWAL FEES TO THE CREDIT CARD ASSOCIATED WITH YOUR ACCOUNT UNLESS YOU NOTIFY YOTTABYTE IN ADVANCE THAT YOU WANT TO CANCEL OR DISABLE AUTO RENEWAL. Except as otherwise specified herein, (a) fees are quoted and payable in United States dollars, (b) fees are based on the Services purchased and not actual usage, and (c) payment obligations are non-cancelable and fees paid are non-refundable. You consent and acknowledge that Yottabyte may immediately, and without notice or liability, suspend or terminate your account in the event that you fail to pay for any Services as required herein.
3. Security and Data Privacy.
3.1 Yottabyte Security. Without limiting your obligations under Section 3.2, we will implement commercially reasonable and appropriate measures designed to help you secure Your Files against accidental or unlawful loss, access or disclosure.
3.2 Other Security and Backup. You are responsible for properly configuring and using the Services and taking your own steps to maintain appropriate security, protection and backup of Your Files, which may include the use of encryption technology to protect Your Files from unauthorized access and routine archiving Your Files. Yottabyte username and passwords generated by the Services are for your internal use only and you may not sell, transfer or sublicense them to any other entity or person, except that you may disclose such information to your agents and subcontractors performing work on your behalf.
3.3 End User Violations. 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 Files or use of the Services. You are responsible for end users’ use of Your Files and the Services. You will ensure that all end users comply with your obligations under this Agreement. If you become aware of any violation of your obligations under this Agreement by an end user, you will immediately terminate such end user’s access to Your Files and the Services.
4. Term; Suspension and Termination.
4.1 Term. This Agreement shall remain in effect until terminated as set forth herein.
4.2 Temporary Suspension; Security Issues. Yottabyte may suspend your right to access or use any portion or all of the Services at any time, with or without cause, and with or without notice. For example, we may suspend or terminate your use if we determine: (a) your use of or registration for the Services poses a security risk to the Services or any third party, may adversely impact the Services or the systems or content of any other Yottabyte customer, may subject us, our affiliates, or any third party to liability, or may be fraudulent; or (b) you are in breach of this Agreement, the Acceptable Use Policy, any license agreement governing your use of the Software or any other agreement between you and Yottabyte. If Yottabyte becomes aware of a violation of the Agreement, the Acceptable Use Policy, any license agreement governing your use of the Software or any other agreement between you and Yottabyte, then Yottabyte may, in addition to its other rights and remedies, suspend the applicable account and access and use of the Services. Yottabyte will not be liable for interruptions in the Service caused by a condition (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action, and Internet disturbance) that was beyond Yottabyte’s reasonable control.
4.4 Termination for Cause. Yottabyte may terminate this Agreement immediately upon notice to you (a) for cause, if any act or omission by you (including your employees or personnel) results in a suspension described in Section 4.2, (b) if you fail to timely pay all fees due to Yottabyte; (c) in order to comply with the law or requests of governmental entities, or (d) if we determine use of the Services by you or any end users or our provision of any of the Services to you has become impractical or unfeasible for any legal or regulatory reason. Yottabyte may also terminate this Agreement, effective immediately, if you cease to operate in the ordinary course of business, file, or have filed against you, a petition for voluntary or involuntary bankruptcy or pursuant to any other insolvency law, make or seek to make a general assignment for the benefit of your creditors or apply for, or consent to, the appointment of a trustee, receiver or custodian for a substantial part of your property.
4.5 Effect of Termination. Upon any termination of this Agreement, all your rights under this Agreement immediately terminate and you will immediately return or, if instructed by us, destroy all Yottabyte content in your possession. No expiration or termination shall affect your obligation to pay all fees that may have become due before such expiration or termination, or entitle you to any refund. If this Agreement is terminated or suspended, you will lose access to the Services and you may be unable to access your content and data.
5. No Warranty; Disclaimer.
5.1 Disclaimer. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOTTABYTE PROVIDES THE SERVICES ON AN “AS IS” BASIS AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THIS AGREEMENT OR COMMUNICATION WITH YOU, AND YOTTABYTE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT. Some states or jurisdictions do not allow the exclusion of implied warranties, so the above limitations may not apply to you.
WITHOUT LIMITATION TO THE FOREGOING, YOTTABYTE PROVIDES NO WARRANTY OR UNDERTAKING, AND MAKES NO REPRESENTATION OF ANY KIND THAT THE SOFTWARE OR DOCUMENTATION WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, ALLOW YOU TO ACCESS YOUR DATA, BE COMPATIBLE OR WORK WITH ANY OTHER SOFTWARE, APPLICATIONS, SYSTEMS OR SERVICES (INCLUDING PRIOR OR SUBSEQUENT VERSIONS OF THE SOFTWARE), OPERATE WITHOUT INTERRUPTION, MEET ANY PERFORMANCE OR RELIABILITY STANDARDS OR BE ERROR FREE OR THAT ANY ERRORS OR DEFECTS CAN OR WILL BE CORRECTED.
5.2 Limitation of Liability. TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW:
IN NO EVENT WILL YOTTABYTE OR ITS AFFILIATES, OR ANY OF ITS OR THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE SERVICES, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM SYSTEM OR SYSTEM SERVICE FAILURE, MALFUNCTION OR SHUTDOWN, FAILURE TO ACCURATELY TRANSFER, READ OR TRANSMIT INFORMATION, FAILURE TO UPDATE OR PROVIDE CORRECT INFORMATION, SYSTEM INCOMPATIBILITY OR PROVISION OF INCORRECT COMPATIBILITY INFORMATION OR BREACHES IN SYSTEM SECURITY, OR FOR ANY CONSEQUENTIAL, INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR PUNITIVE DAMAGES, WHETHER ARISING OUT OF OR IN CONNECTION WITH THIS AGREEMENT, BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, REGARDLESS OF WHETHER SUCH DAMAGES WERE FORESEEABLE AND WHETHER OR NOT YOTTABYTE WAS ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
IN NO EVENT WILL THE COLLECTIVE AGGREGATE LIABILITY OF YOTTABYTE, ITS AFFILIATES’, OR THEIR RESPECTIVE LICENSORS AND SERVICE PROVIDERS ARISING OUT OF OR RELATED TO THIS AGREEMENT, WHETHER ARISING OUT OF OR RELATED TO BREACH OF CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE, EXCEED THE TOTAL AMOUNT ACTUALLY PAID TO YOTTABYTE FOR THE SERVICES.
THE LIMITATIONS SET FORTH IN THIS SECTION 5.2 SHALL APPLY EVEN IF THE LICENSEE’S REMEDIES UNDER THIS AGREEMENT FAIL OF THEIR ESSENTIAL PURPOSE. BECAUSE SOME STATES AND JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY, THE ABOVE LIMITATION MAY NOT APPLY TO YOU.
6.1 By You. You will indemnify, defend, and hold harmless Yottabyte, its affiliates, licensors and each of their respective employees, officers, directors, and representatives from and against all claims, losses, liabilities, damages, expenses and costs (including settlement costs and reasonable attorneys’ fees) arising out of a claim regarding: (a) your use of the Services (including any activities under your Yottabyte account and use by your employees and personnel whether authorized by you or not); (b) breach of this Agreement or violation of applicable law by you or your employees and personnel; or (c) Your Files, data or content, including any claim involving alleged infringement or misappropriation of third party rights.
6.2 Process. We will promptly notify you of any claim subject to Section 6.1, but our failure to promptly notify you will only affect your obligations under Section 6.1 to the extent that our failure prejudices your ability to defend the claim. You may: (a) use counsel of your own choosing (subject to our written consent) to defend against any claim; and (b) settle the claim as you deem appropriate, provided that you obtain our prior written consent before entering into any settlement. We may also assume control of the defense and settlement of the claim at any time.
7. Governing Law and Dispute Resolution.
7.1 Governing Law. This Agreement shall be governed by and construed in accordance with the internal laws of the State of Michigan without giving effect to any choice or conflict of law provision or rule. Subject to Section 7.2 below, any legal suit, action or proceeding arising out of or related to this Agreement or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or state courts located in Oakland County, Michigan, and each party irrevocably submits to the exclusive jurisdiction of such courts in any such suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth herein shall be effective service of process for any suit, action or other proceeding brought in any such court. The United Nations Convention for the International Sale of Goods shall not apply.
7.2 Binding Arbitration. ANY DISPUTE OR CLAIM RELATING IN ANY WAY TO YOUR USE OF THE SERVICE OR THIS AGREEMENT, OR TO ANY SERVICES PROVIDED OR SOLD THROUGH YOTTABYTE WILL BE RESOLVED THROUGH BINDING ARBITRATION, RATHER THAN IN COURT. There is no judge or jury in arbitration, and court review of an arbitration award is limited. An arbitrator, however, can award on an individual basis the same damages and relief as a court (including injunctive and declaratory relief or statutory damages). Arbitration, including the selection of the arbitrator, will be administered by the American Arbitration Association (the “AAA”) under its rules, including the AAA’s Supplementary Procedures for Consumer-Related Disputes. The AAA’s rules are available at www.adr.org or by calling 1-800-778-7879. You or Yottabyte may demand arbitration at any time, regardless of whether a lawsuit or other proceeding has previously been commenced. If you demand arbitration, you must send a letter requesting arbitration and describing your claim via U.S. Certified Mail or other overnight, traceable courier, to our registered agent. If arbitration proceedings are commenced, you and Yottabyte will each remain solely liable for their attorneys’ fees and expenses incurred in connection with the arbitration. You and Yottabyte agree that this arbitration provision and any resulting arbitration are governed by the Federal Arbitration Act (Title 9 of the United States Code), that federal arbitration laws apply to this Agreement and that neither party will be entitled to rely on any arbitration award, finding of fact, or conclusion of law issued in any other arbitration proceeding involving only one of the parties. Notwithstanding the foregoing, you agree that Yottabyte may bring suit in court to enjoin infringement or other misuse of its intellectual property rights. This arbitration provision shall survive the termination of this Agreement and any other contract between you and Yottabyte.
7.3 Waiver of Jury Trial. IF FOR ANY REASON A CLAIM PROCEEDS IN COURT RATHER THAN IN ARBITRATION, YOU WAIVE ANY RIGHT TO A JURY TRIAL.
7.4 Class Action Waiver. YOU AGREE THAT ANY DISPUTE RESOLUTION PROCEEDINGS WILL BE CONDUCTED ONLY ON AN INDIVIDUAL BASIS AND NOT IN A CLASS, CONSOLIDATED OR REPRESENTATIVE ACTION. You shall not be entitled to join or consolidate claims by or against others in any arbitration, or to include in any arbitration any dispute as a representative or member of a class, or on behalf of the general public, or as a private attorney general.
8.1 Changes to this Agreement. Yottabyte reserves the right to modify this Agreement or the Additional Terms at any time, and each such modification will be effective upon posting at Terms. Your continued use of any Services following any such modification constitutes your agreement to be bound by the modified Agreement or Additional Terms. We last modified this Agreement on the date listed at the beginning of this Agreement. To stay informed of any changes, please review the most current version of this Agreement posted on the Site. If you do not agree to be bound by nay changes to this Agreement or the Additional Terms, you must stop using the Services immediately.
8.2 Export Regulation. Any Software and related documentation made available to you by Yottabyte for use in connection with the Services may be subject to U.S. export control laws, including the U.S. Export Administration Act and its associated regulations. You shall not, directly or indirectly, export, re-export or release the Software or documentation to, or make the Software or documentation accessible from, any jurisdiction or country to which export, re-export or release is prohibited by law, rule or regulation. By downloading or using the Software, you are certifying that you are not a national of Cuba, Iran, Iraq, North Korea, Sudan, Syria, or any country to which the United States embargoes goods and that you are not a person on the Table of Denial Orders, the Entity List, or the List of Specially Designated Nationals. You shall comply with all applicable federal laws, regulations and rules, and complete all required undertakings (including obtaining any necessary export license or other governmental approval), prior to exporting, re-exporting, releasing or otherwise making the Software or documentation available outside the U.S.
8.3 Notices. All notices, requests, consents, claims, demands, waivers and other communications hereunder from Yottabyte to you shall be delivered to you at the locations specified by you when registering for the Services. If you have any questions about this Agreement or the Service, or if you want to contact Yottabyte for any reason, please direct all correspondence to: Yottabyte, LLC, 1750 S. Telegraph Road, Suite 200, Bloomfield Township, MI 48302 or by e-mail at firstname.lastname@example.org.
8.4 Entire Agreement; No Waiver. This Agreement, together with the Additional Terms and all other documents that are referenced herein, constitute the sole and entire agreement between you and Yottabyte with respect to the subject matter contained herein, and supersedes all prior and contemporaneous understandings, agreements, representations and warranties, both written and oral, with respect to such subject matter. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: this Storage Services Agreement and the Additional Terms. Yottabyte’s failure to insist upon or enforce your strict compliance with this Agreement or any provisions of the Additional Terms will not constitute a waiver of any of our rights.
8.5 Assignment. You shall not assign or otherwise transfer any of your rights, or delegate or otherwise transfer any of its obligations or performance, under this Agreement, in each case whether voluntarily, involuntarily, by operation of law or otherwise, without Yottabyte’s prior written consent. Any purported assignment, delegation or transfer in violation of this paragraph is void. Yottabyte may freely assign or otherwise transfer all or any of its rights, or delegate or otherwise transfer all or any of its obligations or performance, under this Agreement without your consent. This Agreement is binding upon and inures to the benefit of the parties hereto and their respective permitted successors and assigns.
8.6 Severability. If any term or provision of this Agreement is invalid, illegal or unenforceable in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other term or provision of this Agreement or invalidate or render unenforceable such term or provision in any other jurisdiction.
8.7 Interpretation. For purposes of this Agreement, (a) the words “include,” “includes” and “including” shall be deemed to be followed by the words “without limitation”; (b) the word “or” is not exclusive; and (c) the words “herein,” “hereof,” “hereby,” “hereto” and “hereunder” refer to this Agreement as a whole. Unless the context otherwise requires, references herein to an agreement, instrument or other document means such agreement, instrument or other document as amended, supplemented and modified from time to time to the extent permitted by the provisions thereof. This Agreement shall be construed without regard to any presumption or rule requiring construction or interpretation against the party drafting an instrument or causing any instrument to be drafted. All Additional Terms referred to herein shall be construed with, and as an integral part of, this Agreement to the same extent as if they were set forth verbatim herein. The headings in this Agreement are for reference only and shall not affect the interpretation of this Agreement.
8.8 Force Majeure. Yottabyte 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, systemic electrical, telecommunications, or other utility failures, earthquake, storms or other elements of nature, blockages, embargoes, riots, acts or orders of government, acts of terrorism, or war.
8.9 No Third Party Beneficiaries. This Agreement is for the sole benefit of the parties hereto and their respective successors and permitted assigns and nothing herein, express or implied, is intended to or shall confer on any other Person any legal or equitable right, benefit or remedy of any nature whatsoever under or by reason of this Agreement.
Last updated: October 24, 2012