Terms of Use
REMOTE DATA PROTECTION SERVICE AGREEMENT
NOTICE TO SUBSCRIBER: CAREFULLY READ THE FOLLOWING TERMS AND CONDITIONS GOVERNING THE USE OF LEVEL2 STORAGE'S (DBA DATA REBOUND) REMOTE DATA PROTECTION SERVICE. UTILIZATION OF THE SERVICE CONSTITUTES ACCEPTANCE OF THESE TERMS AND CONDITIONS.
1. Service Provided. Use of this Remote Data Protection Service (the "Service") consists of the right of a Subscriber of the Service ("Subscriber") and its designated users to electronically transmit and store computer data for archival and backup purposes, using either a private data communications network or the Internet, into one or more server computers maintained by Level2 Storage, LLC ("Level2 Storage"), and to retrieve said data subject to applicable fees. Authorized users are those members of Subscriber’s organization who utilize the Service under the Subscriber’s common user name and only on licensed devices as outlined in the Schedule of Rates. The Service is made available by Level2 Storage to Subscriber during the period Subscriber maintains a paid subscription to the Service. Unless otherwise agreed, Subscriber's right to use the Service or to designate users is not transferable and is subject to any limits established by Level2 Storage. Subscriber is responsible for and must provide all telephone, Internet, and other equipment and services necessary to access the Service, at Subscriber's expense. Subscriber shall have access to data stored on Level2 Storage’s servers for restoration purposes via the Internet at no charge. Any data restoration involving creation of physical media will incur a service fee as outlined in the Schedule of Rates, which is incorporated by this reference.
2. Limited License. Subscriber agrees to install and use the software only on devices licensed under this Agreement. Level2 Storage may provide certain software to Subscriber to facilitate use of the Service (the "Software"). Level2 Storage hereby grants Subscriber a limited license to use the Software solely in connection with utilization of the Service during the term of this Agreement, and for no other purpose. Upon termination of this Agreement for any reason, Subscriber shall immediately cease all use of the Software, and shall promptly uninstall and delete all copies thereof in Subscriber's possession or under its control to avoid possible interaction with other components of the Subscriber’s computer system. Level2 Storage shall not be responsible for any damage to Subscriber’s computer system or loss of Subscriber’s data due to Subscriber’s use of the Services including, but not limited to, any interactions between the Software and Subscriber’s computer system.
3. Terms of Agreement. This Agreement shall have an initial term of one (1) year from the date hereof. The term shall be automatically renewed on a yearly basis thereafter, unless Subscriber notifies Level2 Storage, in writing at least thirty (30) days prior to the end of the current term of its intention to terminate this Agreement. Prices in a renewal year shall be at the then most current price schedule. Level2 Storage reserves the right to terminate this Agreement for any reason with a written notice to Subscriber at least thirty (30) days prior to such termination. If this Agreement is terminated for any reason, at the time of such termination the Subscriber shall have no access to data stored on Level2’s servers and the data will be erased.
4. Pricing and Payment. Subscriber shall pay all registration, setup, subscription, usage and other fees and charges incurred by Subscriber or Subscriber's designated users, at the pricing published by Level2 Storage as specified on the Services & Pricing page for the billing period in which those charges are incurred, together with all sales and other taxes applicable to such fees and charges. Invoices will be issued monthly and payment is due upon receipt of invoice. The Subscriber will be billed for non-recurring charges as they are incurred and for recurring charges at the beginning of the billing period in which they are incurred. If the Subscriber chooses to make payments by credit card or other form of electronic payment, the Subscriber shall maintain a current authorization for Level2 Storage to debit Subscriber's account for all amounts payable under this Agreement.
5. Dishonor and Non-Payment. In the event that the financial institution issuing Subscriber's credit card, electronic payment account or check declines to honor any check or charge by Level2 Storage (including the reversal of payment of a prior charge based upon a dispute of such charge by the Subscriber), Level2 Storage may, at its sole discretion and without prior notice to the Subscriber: (a) suspend its performance under this Agreement and deny Subscriber's and Subscriber's designated users' access to and use of the Service until all payment issues have been resolved, or (b) terminate this Agreement including all further right of Subscriber and Subscriber's designated users' to access and the use of the Service. For situations where the Subscriber's credit card or check issuing financial institution has been notified of a payment dispute, said Subscriber agrees that proof of Service usage by Subscriber constitutes proof of Subscriber's authorization for Level2 Storage to submit payment requests to Subscriber's credit card or check issuing financial institution with respect to such usage.
6. Pricing Changes. From time-to-time and at the sole discretion of Level2 Storage, Level2 Storage may change its pricing with respect to the Service or any component thereof. The Subscriber shall be notified of such pricing changes by email to the Subscriber’s designated email address or via a posting on www.DataRebound.com, and no pricing increase shall be effective prior to such notification. In the event the Subscriber shall be unwilling to pay the increased pricing, the Subscriber may terminate this agreement upon giving notice in writing to Level2 Storage and ceasing to use the Service at the conclusion of the current billing period. Continued usage of the Service after the end of such billing period shall be deemed acceptance of the revised pricing.
7. No Refunds for Service Interruptions. Due to the nature of the Internet and the technology utilized in connection with the Service, or to other matters beyond Level2 Storage's control, service interruptions may occur. No full, partial, or prorated refunds will be made as adjustment for any such Service interruption. Subscriber hereby acknowledges that where changes in the nature of the Service occur due to matters which are beyond the control of Level2 Storage, such changes do not constitute grounds for any full or partial refund of any fees previously paid.
8. Responsibility for Confidentiality of Subscriber's Data. Level2 Storage shall take reasonable steps to protect the confidentiality of Subscriber's data, including archive or backup copies of such data. Notwithstanding the foregoing, however, Subscriber shall be solely responsible for maintaining the confidentiality of Passwords utilized by Subscriber with respect to the Service, including restricting knowledge of Passwords to Subscriber's designated users. Subscriber shall be solely responsible for all use of the Service accessed through Subscriber's Password. LEVEL2 STORAGE NEITHER ASSUMES NOR ACCEPTS ANY RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER, SUBSCRIBER'S DESIGNATED USERS, OR OTHER USERS OF THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE USAGE OF THE SERVICE OR THE CONTENTS OF FILES STORED ON THE SERVICE. ALTHOUGH AN INITIAL PASSWORD WILL BE GENERATED BY LEVEL2 STORAGE FOR THE SUBSCRIBER, THE SUBSCRIBER IS STRONGLY ENCOURAGED TO CREATE A NEW SECURE PASSWORD. IN THE EVENT THE SUBSCRIBER CHOOSES TO CONTINUE USING THE INITIALLY GENERATED PASSWORD LEVEL2 STORAGE MAY CHARGE A FEE FOR PROVIDING SUBSCRIBER WITH CONFIRMATION OF A PASSWORD IN THE EVENT IT IS LOST OR FORGOTTEN. SUBSCRIBERS WHO CHANGE THEIR PASSWORDS UNDERSTAND THAT LEVEL2 STAFF HAVE NO ABILITY TO OBTAIN OR RECOVER/RETRIEVE PASSWORDS AND WITHOUT THE CORRECT PASSWORD, SUBSCRIBER'S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
9. Restrictions Upon Use of Service, Indemnification. Subscriber shall not use the Service for storage, possession or transmission of any information, the possession, creation or transmission of which violates any federal, state, local or international law, including without limitation, stolen materials, obscene materials or child pornography. SUBSCRIBER'S BACKUP FILES MAINTAINED BY LEVEL2 STORAGE ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT SUBSCRIBER'S CONSENT, UPON PRESENTATION TO SUBSCRIBER OR LEVEL2 STORAGE OF A SEARCH WARRANT OR SUBPOENA. Subscriber agrees to indemnify and hold Level2 Storage harmless against any cost or liability (including attorney's fees) arising out of use of the Service by Subscriber, it's employees or agents for any unauthorized or illegal purpose, or arising out of the need to respond to a search warrant or subpoena with respect to data stored by Subscriber or any user having access to Subscriber's account.
10. Loss of Subscriber's Data. No bailment or similar obligation is created between Subscriber (and/or Subscriber's designated users) and Level2 Storage with respect to Subscriber's stored data. Level2 Storage strongly recommends that Subscriber maintain an alternative electronic file backup of all data stored using the Service as well as data not stored using this service. Subscriber should not utilize the Service as a substitute for primary electronic file BACKUP. The Subscriber agrees to report any errors arising in course of use of the software promptly by phone, fax or e-mail to Level2 Storage. The Subscriber will ensure the communication services used to connect to Level2 Storage site are error free and reliable. LEVEL2 STORAGE SHALL NOT BE RESPONSIBLE FOR THE LOSS OF SUBSCRIBER'S DATA STORED USING THE SERVICE, DUE TO ANY CAUSE BEYOND LEVEL2 STORAGE'S REASONABLE CONTROL. Level2 Storage shall not be responsible for loss of data not properly backed up due to Subscriber’s failure to maintain the data size below the allocated storage quota. Level2 Storage shall not be responsible for maintaining the NTFS file security information of Subscriber’s data. Level2 Storage may, but shall not be obligated to make copies of all data files stored as part of the backup and recovery of servers utilized in connection with some of the Services. Subscriber shall have no right to access such backup files. AFTER THE TERMINATION OF THIS AGREEMENT THE SUBSCRIBER SHALL HAVE NO ACCESS TO DATA STORED BY LEVEL2 STORAGE AND SUCH DATA WILL BE DESTROYED WITHIN THIRTY (30) DAYS AFTER SUCH TERMINATION. THEREFORE, THE SUBSCRIBER SHALL DOWNLOAD ALL NECESSARY DATA PRIOR TO THE AGREEMENT’S TERMINATION DATE.
11. Disclaimer of Warranties. SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S SOLE RISK. NEITHER LEVEL2 STORAGE NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE. NOR DO LEVEL2 STORAGE OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS MADE AVAILABLE ON AN "AS IS" BASIS, WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR A PARTICULAR PURPOSE.
12. Limitation of Remedies. NEITHER LEVEL2 STORAGE, ITS EMPLOYEES, AGENTS, NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES OR LOST PROFITS ARISING OUT OF USE OF THE SERVICE, INABILITY TO USE THE SERVICE, OR LOSS OF SUBSCRIBER'S DATA. IN NO EVENT WILL LEVEL2 STORAGE'S LIABILITY FOR ANY CLAIM BY SUBSCRIBER, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE IN THE TWELVE MONTH PERIOD PRECEDING THE EVENT FORMING THE BASIS OF THE CLAIM.
13. Notices. Subscriber shall provide Level2 Storage with its current street address and/or a current Internet email address designated for future notices and other communications pertaining to this Agreement. Subscriber shall promptly notify Level2 Storage of any changes in its street or designated email addresses. Any notice to Subscriber permitted or required by this Agreement may be given by email to the last email address designated by Subscriber or in writing by the US Postal Service to the last designated address.
14. Termination. The Subscriber may terminate this agreement upon giving notice in writing to Level2 Storage and ceasing to use the Service at the conclusion of the current billing period, and by paying for all services covered under this agreement, for the remainder of the term. For any renewal beyond year one, subscriber may terminate this agreement at any time by providing 30 days notice to Level2 Storage in writing with no penalty. Service fees for the remaining term are based on the average monthly fees charged (exclusive of one-time license and installation fees) for the current term in effect at the time that Level2 Storage receives Subscriber’s notification to terminate, multiplied by the number of months left in the current term.
15. Assignment. Level2 Storage shall have the right to assign this agreement to any person, firm or corporation. In case of such assignment the Subscriber shall be notified via email thirty (30) days in advance and shall have the options to terminate this Agreement, with no penalty, effective as of the date of such assignment. Subscriber may assign this Agreement with written notice to Level2 Storage, including proper billing instructions for the new Subscriber. Such Subscriber assignment shall be effective upon Level2 Storage's approval of the new entity's credit card, financial statement or with prepayment of required service fees.
16. Events Beyond Level2 Storage's Control. Level2 Storage shall not be deemed to be in breach of this Agreement, and its obligations hereunder shall be deemed suspended, if its performance is delayed or prevented, in whole or part, by any act of God, war, terrorism, fire, natural disaster, accident, riot, strike, governmental action, shortage of materials or supplies, failure of any transportation or communication system, non-performance of vendor, or any other cause beyond its reasonable control.
17. Choice of Law. This agreement is, and shall be governed by and construed in accordance with the laws of the State of Illinois applicable to agreements made and performed in Illinois, excluding conflicts of law provisions.
18. Notice of Claim, Filing of Suit. Any claim arising under this Agreement shall be presented to the other party within a reasonable period of time, and in no event shall suit on such claim be commenced more than six (6) months after the event, act or omission giving rise to the claim. The venue of any action arising under this Agreement shall be the state or federal courts located in Cook County, Illinois. In any legal action arising under this Agreement, the prevailing party shall be entitled to recover its reasonable attorney's fees and costs. Subscriber agrees to submit itself to the personal jurisdiction of the Illinois court and hereby irrevocably waives its right to challenge such personal jurisdiction.
19. Invalidity. If any provision of this Agreement is determined to be invalid, all other provisions shall remain in full force and effect.
20. Non-Waiver. The failure of any party to insist upon strict performance of any of the terms and conditions of this Agreement, or to exercise any option or right herein conferred, in any one or more instances, shall not be construed to be a waiver or relinquishment of the right to insist upon future performance of such term or condition, which shall be and remain in full force and effect. These terms and conditions, together with the Schedule of Rates and any additional Operating Rules published by Level2 Storage from time to time, constitute the entire and only agreement (collectively, the "Agreement") between Level2 Storage and Subscriber (including Subscriber's designated users) with respect to the Service, and supersede all prior communications and agreements.
21. Entire Agreement, Modification regard to the subject matter hereof. Upon notice published on www.DataRebound.com or sent in writing to Subscribers designated mailing address, Level2 Storage may prospectively modify its Operating Rules and/or Prices, and may discontinue or revise any or all other aspects of the Service, at its sole discretion and without advance notice. Additionally, on fifteen (15) days prior notice to Subscriber, which maybe given via email to Subscriber's designated email address, Level2 Storage may modify these terms and conditions. In the event the Subscriber shall be unwilling to accept the modified terms and conditions, the Subscriber may terminate this agreement upon giving notice in writing to Level2 Storage and ceasing to use the Service at the conclusion of the current billing period. Subscriber's continued use of the Service after the effective date of such modifications shall constitute acceptance of such modified terms and conditions. No provision or condition in any purchase order, confirmation, letter or other communication from or on behalf of the Subscriber which is in any way inconsistent with, or purports to add to, the provisions of this Agreement shall have any legal effect. Neither the course of conduct between parties nor trade practice shall act to or modify the provisions of this Agreement.
