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Terms of Service Agreement

These Terms of Service (“Terms”) are a legal agreement between you (“You” or “you”), and Yottabyte, LLC (“Yottabyte”, “Us”, “We” or “Our”). These Terms govern your access to and use of any Yottabyte services (“Services”), the Yottabyte website (“Site”), and any software provided by Yottabyte, including any updates and any accompanying documentation (“Software”). Collectively, the Software, the Site and the Services may be referred to in these Terms as the “Services.”

BY USING THE SITE, SERVICES OR SOFTWARE, YOU ACCEPT AND AGREE TO BE LEGALLY BOUND BY THESE TERMS IN ADDITION TO THE TERMS OF ANY OTHER AGREEMENT BETWEEN YOU AND YOTTABYTE GOVERNING YOUR USE OF THE SERVICES INCLUDING BUT NOT LIMITED TO THE APPLICABLE END USER LICENSE AGREEMENT, STORAGE SERVICES AGREEMENT AND ACCEPTABLE USE POLICY.

If you are using the Services on behalf of an organization or legal entity (e.g., a corporation, limited liability company, partnership, governmental agency or organization, or educational institution), you agree to these Terms for that entity and represent that you have the authority to bind that legal entity to these Terms. You represent that you are at least 18 years of age and are lawfully able to enter into a binding agreement. IF YOU DO NOT AGREE TO THESE TERMS, YOU MAY NOT USE OR ACCESS THE SITE, SERVICES OR SOFTWARE.

ACCOUNTS & FEES

No registration is required to access the Site alone. However, you must register with Yottabyte to download the Software or use certain Services, and you agree to keep your registration information accurate, complete and up-to-date as long as you continue to use the Software or Services. Yottabyte currently offers a free community beta edition account which permits the limited use of an unsupported beta version of the Software in an non-production environment with an available free limited storage capacity option (“Community Beta Edition”) and various fee-bearing licenses to use a supported version of the Software in production environment accounts with optional and larger storage capacities and other feature enhancements (“Enterprise Edition”). The terms and restrictions applicable to Community Beta Edition and Enterprise Edition are described on the Site and in the applicable end user license agreement and storage services agreement.

If You sign up for an Enterprise Account, 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 quota allocated to your account, you agree that Yottabyte may restrict your ability to store further data until you reduce your storage usage or sign-up to another type of account with a higher quota or no quota at all. 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 or in the end user license agreement and storage services agreement applicable to the Enterprise Edition, (i) fees are quoted and payable in United States dollars (ii) fees are based on Services purchased or actual usage, and (iii) 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 or in the applicable end user license agreement and storage services agreement applicable to the Enterprise Edition.

PASSWORDS & SECURITY

To access the Services or to use certain features made available on the Site, you must create an account and password. You are responsible for keeping your passwords secure, and you agree not to disclose your passwords to any third party. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. If you lose your passwords for your account, you may not be able to access your information or the Services. You must notify Yottabyte immediately of any unauthorized use of your accounts or any other security breach related to the Service. If Yottabyte determines that a security breach has occurred or is likely to occur, Yottabyte may suspend your accounts and require you to change your user names and passwords.

PRIVACY POLICY

You agree that Yottabyte’s collection, use and disclosure of your personal information and any other data will be governed by Yottabyte’s Privacy Policy as updated from time to time, which is incorporated into these Terms by reference and can be found at Privacy Policy.

ACCEPTABLE USE POLICY

You agree that you will not, and will not attempt to, misuse the Services, and will use the Services only in a manner consistent with Yottabyte’s Acceptable Use Policy as updated from time to time, which is incorporated into these Terms by reference and can be found at Acceptable Use Policy. You are solely responsible for your conduct related to the Service and any data you store or share on the Service. You agree to adhere to all laws, rules, and regulations applicable to your use of the Services.

USE OF SERVICES & SOFTWARE

You agree that your use of the Software and Services is subject to these Terms, as well as any other written agreement, including any end user license agreement or storage services agreement between you and Yottabyte, the terms of which are incorporated herein by reference. In the event of any conflict between the terms of these Terms and the applicable end user license agreement or storage services agreement between you and Yottabyte, the terms of such end user license agreement or storage services agreement between you and Yottabyte shall control.

SHARED CONTENT

The Services may enable you to share or submit content, data, or files to the Site, other users of the Site or between your own devices or with devices owned or controlled by third parties. If you choose to use any such features, you agree that your use of these features, including any content submitted by you, shall be at your sole risk and responsibility. You also agree that you have obtained all necessary rights and licensees to any such content. You hereby grant Yottabyte a worldwide, royalty-free, nonexclusive license to use any such content as part of the Services, and in relation to the Services, without any compensation to you or others. Yottabyte reserves the right to refuse to post or remove any such content at any time in its sole discretion without notice or liability.

BLOGS, FORUMS AND WIKIS

Our Service offers publicly accessible community services such as blogs, forums and wikis. You should be aware that any information You provide in these accesses may be read, collected and used by anyone who has access to them, even after You cancel your account. You will comply with all rules applicable to these areas as a condition of your use of these Services, including the Acceptable Use Policy located at Acceptable Use Policy as updated from time to time. We have no responsibility for these accesses.

THIRD PARTY CONTENT

Yottabyte’s website may contain links to other web sites and/or contain features and functionalities, which are not operated or controlled by Yottabyte (“Third Party Content”). Yottabyte is not responsible for and does not endorse or accept any responsibility for the content, products, and services (including websites, directories, systems, databases, programs and software products) that constitute Third Party Content. Your interactions, including payment and delivery for goods or services, and any other terms, conditions, warranties or representations associated with Third Party Content are governed by the terms of use and privacy policies for the Third Party Content. Yottabyte makes no representation or warranty as to the accuracy, completeness or authenticity of any Third Party Content. Your linking to any other website is done at your own risk.

YOTTABYTE PROPERTY AND FEEDBACK

You acknowledge that Yottabyte or third parties own all right, title and interest in and to the Services, including all intellectual property rights. These Terms do not grant you any right, title or interest in the Services, Software or the content in the Services. We may use any feedback, comments, or suggestions you send us or post publicly. The Software, Site and other technology we use to provide the Services are protected by copyright, trademark and other laws of the United States.

INTELLECTUAL PROPERTY PROTECTION & COPYRIGHT

Yottabyte respects the intellectual property of others and requires that users of the Service do the same. When you use the Services, you may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. In appropriate circumstances, Yottabyte will terminate the accounts of repeat infringers.

If you believe that any material on this website infringes a copyright, or any valid intellectual property right, you must provide notice to Yottabyte’s Copyright Agent in accordance with Yottabyte’s Copyright and DMCA Policy as updated from time to time, located at DMCA policy. Your notice must comply with the law and be properly provided to us.

INDEMNITY

You agree to defend, indemnify, and hold Yottabyte, its suppliers, resellers, partners and their respective affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable attorney fees and costs, in connection with your use of the Services, your violation of these Terms or any applicable end user license agreement, storage serviced agreement or other agreement between You and Yottabyte, and any claim that use of your data or submission of content caused damage to a third party. This indemnity obligation will survive the termination or expiration of your account and these Terms.

CHANGES TO THE SERVICE & TERMS

Yottabyte reserves the right at any time to modify, suspend, or discontinue providing the Services, in whole or in part, without notice and without liability. While not obligated to do so, Yottabyte will use commercially reasonable efforts to notify you of any such action by sending you an e-mail, a letter or by posting relevant information on the Site.

Yottabyte reserves the right to modify these Terms at any time, and each such modification will be effective upon posting on the Site. Your continued use of any Services following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Services immediately.

TERM & TERMINATION

Unless modified pursuant to a separate written agreement between You and Yottabyte, these Terms, and any posted revisions, remain in effect as long as you continue to maintain an account or use the Services. You may terminate your account at any time, for any reason, by following the instructions on the Site and discontinuing use of the Services. Yottabyte may suspend the Services at any time, with or without cause, and with or without notice.

If you have a Community Beta Edition, Yottabyte may terminate your account and these Terms immediately and without notice if your computer fails to access the Services for more than thirty (30) days, if you fail to comply with these Terms or in accordance with the terms of any other agreement between you and Yottabyte (e.g., an End User License Agreement or Storage Service Agreement). If you have a Paid Account, Yottabyte may terminate your account and these Terms immediately and without notice or liability if you fail to renew your subscription, fail to pay any fees or invoices when due, otherwise fail to comply with these Terms or in accordance with the terms of any other agreement between you and Yottabyte (e.g., an End User License Agreement or Storage Service Agreement).

On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Software and the Services, and you will no longer be able to access and restore your synchronized data. Also, you specifically agree that Yottabyte has no obligation to provide you or anyone else with a copy of your data and may automatically purge your data from Yottabyte systems.

NO WARRANTY; DISCLAIMER OF WARRANTIES

TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE MANDATORY LAW, YOTTABYTE AND ITS LICENSORS PROVIDE ACCESS TO THE SITE AND USE OF THE SERVICES ON AN “AS IS” AND “AS AVAILABLE BASIS, “AT YOUR OWN RISK” AND WITHOUT ANY WARRANTIES OF ANY KIND, EXPRESS, IMPLIED, STATUTORY, OR IN ANY OTHER PROVISION OF THESE TERMS OR COMMUNICATION WITH YOU. YOTTABYTE AND ITS LICENSORS SPECIFICALLY DISCLAIM ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION, ANY WARRANTIES (A) OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT, (B) THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, (C) THAT YOUR USE OF THE SERVICES WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE, AND (D) THAT ANY DEFECTS OR ERRORS IN THE SERVICES WILL BE CORRECTED. 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 SITE OR THE SERVICES WILL MEET THE LICENSEE’S REQUIREMENTS, ACHIEVE ANY INTENDED RESULTS, ALLOW YOU TO ACCESS YOUR DATA, BE COMPATIBLE OR WORK WITH ANY 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.

LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL YOTTABYTE OR ITS AFFILIATES, OR ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS, BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY USE, INTERRUPTION, DELAY OR INABILITY TO USE THE PRODUCTS, LOST REVENUES OR PROFITS, DELAYS, INTERRUPTION OR LOSS OF SERVICES, BUSINESS OR GOODWILL, LOSS OR CORRUPTION OF DATA, LOSS RESULTING FROM THE USE OF THE SITE OR SERVICES, INCLUDING WITHOUT LIMITATION, ANY 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 THESE TERMS, THE SITE, THE SERVICES, 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 YOTTABYTE’S AND ITS AFFILIATES’, INCLUDING ANY OF THEIR RESPECTIVE LICENSORS OR SERVICE PROVIDERS’, COLLECTIVE AGGREGATE LIABILITY ARISING OUT OF OR RELATED TO THESE TERMS, THE SITE OR THE SERVICES, 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 USE OF THE SITE OR SERVICES UPON WHICH SUCH CLAIM OR LOSS IS BASED.

THESE LIMITATIONS SHALL APPLY EVEN IF THE REMEDIES UNDER THESE TERMS OR ANY OTHER AGREEMENT BETWEEN YOU WITH RESPECT TO THE SERVICES 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.

GENERAL TERMS

Export Regulation
You acknowledge that use of the Services may be subject to the export and import laws of the United States and other countries, including the U.S. Export Administration Act and its associated regulations. You agree that you will not, directly or indirectly, export, re-export or release the Services to, or make the Services 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 Services, 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 agree to 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.

Governing Law and Venue
These Terms and the relationship between you and Yottabyte will be governed by the laws of the State of Michigan, excluding its conflicts of law provisions. You agree that any legal suit, action or proceeding arising out of or related to these Terms 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 you agree to submit to the exclusive jurisdiction of such courts in any such suit, action or proceeding. As to intellectual property rights, you specifically agree that Yottabyte may file an action in any jurisdiction to protect or enforce its rights. The United Nations Convention on Contracts for the International Sale of Goods will not apply to these Terms.

Other Legal Terms
These Terms, together with all other documents that are referenced herein, constitute the entire agreement between you and Yottabyte with respect to the subject matter contained herein, and completely replace any prior agreements between you and Yottabyte with respect to such subject matter. If any part of these Terms is held invalid or unenforceable, that portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining portions will remain in full force and effect. The failure of Yottabyte to exercise or enforce any right or provision of these Terms will not constitute a waiver of such right or provision. You agree that, except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to this agreement. You may not assign or transfer any of your rights or obligations under these Terms to a third party without the prior written consent of Yottabyte. Yottabyte may freely assign this Agreement. YOU AGREE THAT ANY CLAIM OR CAUSE OF ACTION RELATED TO THESE TERMS OR THE USE OF THE SERVICES MUST BE FILED WITHIN SIX (6) MONTHS AFTER THE CAUSE OF ACTION AROSE OR BE FOREVER BARRED.

CONTACTING YOTTABYTE

If you have questions about these Terms, you may contact Yottabyte via e-mail at: terms@yottabyte.com.

Last updated: October 24, 2012