Vaulten Products and Services Terms and Conditions of Use

Updated and effective as of 01/01/2009
READ THIS AGREEMENT CAREFULLY

1. Definition of Terms

   As used in these Terms and Conditions of Use:

   (a) "Vaulten," "we," "us," or "our" mean Stral LLC and its subsidiaries.

   (b) "You," "yourself", "user," "subscriber," "client," and "customer" refer to the individual or legal entity registering for or using the Vaulten Products or Services.

   (c) "Vaulten Products or Services" means data backup services, websites (including without limitation, www.vaulten.com), all other documentation, features, tools, Vaulten Software, and any other products or services provided by Vaulten or its authorized agents and licensees.

   (d) "Vaulten Software" means software provided to you or for your use by Vaulten.

   (e) "Computer" means a desktop or laptop computer, network device, and any storage device attached to them in any fashion.

   (f) "Personal Information" means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, gender, year of birth, and postal code.

   (g) "Backup Data" includes any data you back up through Use of the Vaulten Products or Services and any related data that are in the possession of Vaulten or Vaulten Affiliates.

   (h) To "Use" Vaulten Products or Services means each time you visit a Vaulten website, download Vaulten Software, register with Vaulten, use Vaulten Software to encrypt or back up data, view the status of your Backup Data, store or restore Backup Data, or request support.

2. Acceptance of Terms and Conditions of Use; Modification; Cancellation

   By registering to Use Vaulten Products or Services, and each time you Use a Vaulten Product or Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the Vaulten Products or Services and thereafter. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use Vaulten Products or Services.
   
   Vaulten may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately upon posting on our website at www.vaulten.com.

3. Requirements for Registration or Use of Vaulten Products

   Vaulten Products or Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract. Vaulten does not offer Vaulten Products or Services to minors or where prohibited by law. By registering for and/or by Using Vaulten Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the Vaulten Terms and Conditions of Use and that you will Use Vaulten Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws.
   
   If you are Using Vaulten Products or Services on behalf of an entity or organization, you warrant, represent, and covenant to Vaulten that you are duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them.
   
   We may ask you from time to time to establish a user name or password to access or Use the Vaulten Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.

4. Lawful use of Vaulten Products or Services

   You may not Use Vaulten Products or Services for any unlawful purpose. Vaulten Products or Services may NOT be used to store, backup, or distribute child pornography and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required.
   
   You may not use Vaulten Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you use Vaulten Products or Services you represent, warrant, and covenant that:
   
   You may not use Vaulten Products or Services if you are listed on the U.S. Department of Treasury’s Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State’s List of Statutorily Debarred Parties, or the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List Table of Denial Orders.

5. Changes to Vaulten Products or Services

   Vaulten has the right at any time to change, modify, add to, discontinue, or retire any Vaulten Product or Service and any aspect or feature of the Vaulten Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or use, the types of files that are backed-up (not every file on your computer is backed-up), the maximum disk space that will be allotted on Vaulten servers on your behalf either cumulatively or for any particular service, or the availability of Vaulten Products or Services on any particular device or communications service.
   
   Vaulten will provide notice of material changes to the Vaulten Products or Services or changes to this Agreement by posting them to www.vaulten.com. Vaulten shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes.
   
   Vaulten may automatically update Vaulten Products or Services you have installed on your computer without your prior consent.

6. Vaulten License to You; Renewals, Modifications, Limits

   (a) Scope of License. Vaulten grants you a non-exclusive, non-transferable limited and revocable license to install the Vaulten Software, and to use the Vaulten Products or Services for the sole and exclusive purposes of connecting to and using the Vaulten Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use, provided you comply and remain in compliance with this Agreement. We reserve all other rights to the Vaulten Products or Services.
   
   You may not sub-license, or charge others to use or access, the Vaulten Products or Services and you may not redistribute the Vaulten Products or Services or provide others with access to or use of them, unless you have entered into a Reseller, Affiliate or similar Agreement with Vaulten to engage in this activity.
   
   (b) Trial Licenses. If you received a free trial or evaluation license for which you have not paid a license fee, Vaulten grants to you a personal, non-exclusive, non-transferable limited license to use the Vaulten Software in object code form. You may only install one free trial or evaluation license in each calendar year per computer.
   
   (c) Renewals. You agree that Vaulten shall have the right to automatically and without notice renew your license to continue to use the Vaulten Products or Services upon expiration of your then-current license, and that as part of such renewal Vaulten shall have the right to charge the applicable renewal fees and any applicable taxes to any credit card you used to purchase your then-current license. You agree that if you elect to not permit Vaulten the right to automatically renew your license to use Vaulten Products or Services or your credit card information on file with Vaulten does not permit automatic renewal, then Vaulten may terminate your license.
   
   (d) Upgrades. Vaulten may in its sole discretion provide automatic upgrades to the Vaulten Products or Services. These upgrades may not be consistent across all platforms and computers and that the performance and features offered by Vaulten may vary depending on your computer and other equipment. You agree that we may automatically check your version of the Vaulten Software and automatically update the Vaulten Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If you shut down your computer or the Vaulten Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
   
   (e) Refunds. By purchasing a license, you acknowledge that you are aware of the opportunity to "try before you buy" by using a free or evaluation Vaulten Product or Service. Vaulten does not offer any refunds for purchases of Vaulten Products or Services, except as expressly provided in this Agreement.

7. Assignment and Delegation by Vaulten

   Vaulten may, in its sole discretion, transfer or assign all or any part of its rights in the Vaulten Software, the Vaulten Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such Vaulten Products or Services, licenses, or other contracts.

8. No Transfers or Modifications by You

   You may not sell, assign, grant a security interest in or otherwise transfer any right in the Vaulten Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the Vaulten Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Vaulten Software or decrypt any files that are not associated with your computer.
   
   You may not modify the Vaulten Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the Vaulten Products. You may not authorize or assist any third party to do any of the foregoing.

9. Protection of Files

   You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You understand that the Vaulten Products or Services may back-up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable.

10. Deletion of Backup Data

    Vaulten Software saves to a server operated by IBM or an IBM Affiliate an encrypted copy of each file you designate. The Vaulten Software scans for changes or additions to these files and then periodically creates an encrypted copy of modified or newly designated file. You will not be able to restore files that Vaulten has not completed copying or files that have been changed but not yet been backed up or not eligible for back up. If your license to use Vaulten Products or Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, Vaulten and the Vaulten Affiliates may, without notice, delete or deny you access to any of your Backup Data that may remain in their possession or control.
    
    You agree that if you mark a file to no longer be backed-up, delete a file from your computer, or terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that these files may not be available to you should you wish to restore them.
    
    You agree that Vaulten and Vaulten Affiliates may retain (but shall have no obligation to retain) your Backup Data for a period after your trial or license has been terminated, expired, or otherwise lapsed, as part of Vaulten’s marketing to you the opportunity to purchase, renew, or extend a license.

11. Customer Support

    Vaulten may, in its sole discretion, provide customer support or service to its customers. This service may be available only on selected days and during a limited number of hours. Service may also be available through only certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services Vaulten may employ a variety of tools or services to aid in the process of resolving your issues as a user. You grant Vaulten the right to use these tools and hold Vaulten harmless for the use of these tools as well as the guidance provided by its customer support staff who in no way can be fully aware of all of the complexities associated with the Vaulten product, your computer, or all of the related or associated infrastructure such as your internet service provider’s infrastructure.

12. Restrictions on Access to Vaulten Products or Services

    You may access Vaulten Products or Services only through the interfaces and protocols provided or authorized by Vaulten. You agree that you will not access Vaulten Products through unauthorized means, such as unlicensed software clients. Certain Vaulten Products backup only certain types of files. You agree not to circumvent these limitations in any way, including but not limited to, changing file extensions or header information.

13. Communications

    You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and use Vaulten Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment and any communications or other charges incurred by you to access Vaulten Products or Services.

14. Termination and Fair Use Policy

    Vaulten shall have the absolute and unilateral right in its sole discretion to deny use of and access to all or any portion of Vaulten Products or Services to users who are deemed by Vaulten to be using the Vaulten Products or Services in a manner not reasonably intended by Vaulten or in violation of law, including but not limited to suspending or terminating a user’s account with Vaulten and the license to use the Vaulten Products or Services

15. Data Collection, Encryption, Privacy, and Disclosure

    Vaulten will collect and use Personal Information in accord with the terms of our Vaulten Privacy Policy, which is incorporated into and made a part of these Terms and Conditions of Use. You hereby consent to Vaulten’s use of your Personal Information under the terms of the Vaulten Privacy Policy, as it may be amended from time to time.
    
    To provide its services, Vaulten Software routinely scans your computer in order to detect new, modified, or deleted data files that require further action to complete backup and restore operations. Vaulten Software also catalogs the number and total storage size of various file types on your computer. Vaulten Software inspects file headers and related information in order to confirm that each file’s type is properly represented by its file extension.

16. Warranties

    (a) Warranty: Vaulten warrants that the Vaulten Products or Services will for a period of thirty (30) days from the date of registration and payment perform substantially as specified in the applicable Vaulten documentation. If you satisfactorily demonstrate to Vaulten within such thirty (30) day period that a Vaulten Product or Service contains errors, then as Vaulten’s sole and exclusive liability and as your sole and exclusive remedy, Vaulten shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the Vaulten Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the Vaulten Product or Service and terminate your license under the Terms and Conditions of Use. Vaulten does not warrant the results of its correction or replacement Vaulten Products or Services. Correction or replacement under this Section (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by Vaulten to you, shall not be deemed to begin a new, extended, or additional license, license period, or warranty period.
    
    (b) Disclaimer of other warranties: Vaulten and Vaulten Affiliates do not warrant that the functions contained in the Vaulten Products or Services will meet your requirements, that the operation of the Vaulten Products or Services will be uninterrupted or error-free, or that defects in the Vaulten Products or Services will be corrected. Vaulten and Vaulten Affiliates do not warrant or make any representations regarding the use or the results of the use of the Vaulten Products or Services in terms of their correctness, accuracy, reliability or otherwise. Vaulten and Vaulten Affiliates do not represent or warrant that users will be able to access or use the Vaulten Products or Services at times or locations of their choosing. No oral or written statement, information or advice given by Vaulten, Vaulten Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.

17. Limitation of Liability

    With respect to defects or deficiencies in the Vaulten Products or Services, the liability of Vaulten and Vaulten Affiliates will be limited to performance of its responsibilities under Section – Warranties (above). With respect to other breaches of contract, the liability of Vaulten and Vaulten Affiliates shall be limited to your actual damages, and in no event will such liability exceed the total amount received by Vaulten from you under these Terms and Conditions of Use for your current license period, and only such amounts as relate to the computer affected by the breach. IN NO EVENT WILL VAULTEN, VAULTEN DISTRIBUTORS OR VAULTEN SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE VAULTEN PRODUCTS OR SERVICES OR TO USE OR RETRIEVE ANY BACKUP DATA, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF VAULTEN HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.
    
    Neither Vaulten nor any Vaulten Affiliate assumes any liability to any party other than you arising out of your use or inability to use the Vaulten Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between Vaulten and you. Vaulten would not be able to provide the Vaulten Products or Services to you without such limitations.

18. Indemnification

    YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS VAULTEN, VAULTEN AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE VAULTEN PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.
    
    VAULTEN RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, SHALL YOU HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR VAULTEN IN THAT MATTER.
    
    If Vaulten chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of Vaulten and Vaulten Affiliates, at your own expense, to the full extent requested by Vaulten.

19. Trademarks, Service Marks, and Other Intellectual Property

    All trademarks, service marks or other similar items appearing on the Vaulten Products or Service are the property of their respective owners, including, without limitation, Stral LLC.

20. High Risk Activity

    You acknowledge and agree that the Vaulten Products or Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that Vaulten makes no warranty and shall have no liability arising from any use of the Vaulten Products or Services in any high risk or strict liability activities.

21. Arbitration and Governing Law

    The arbitration undertaking in this Agreement shall be governed by, construed, and interpreted in accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. and, in the case of arbitrations involving one or more non-U.S. parties, by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the U.S. legislation implementing the same, 9 U.S.C. §§ 201 et seq. To the extent that the Arbitration provisions of this Agreement do not apply, the federal and state courts sitting in Hartford, Connecticut shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of Connecticut and service of process being effected by registered U.S. mail or by private delivery service providing proof of delivery, sent to the party being served.
    
    All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Connecticut, USA, without regard to conflict of laws provisions. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.

22. Termination

    If you breach these Terms and Conditions of Use, your right to Use the Vaulten Products or Services shall automatically terminate.
    
    Upon termination: i) you shall immediately cease any and all use of the Vaulten Products or Services and delete all copies of them; ii) the Vaulten Software may be disabled by Vaulten without notice to you; and iii) you will no longer have the right to access or retrieve your Backup Data; you hereby grant Vaulten the unrestricted right to delete all such Personal Information and Backup Data at any time after termination, without notice.

23. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in Terms

    These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between Vaulten and you regarding Vaulten Products or Services, and supersedes all prior agreements between you and Vaulten regarding the subject matters hereof.
    
    Any item or service furnished by Vaulten in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us. Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use and signed by an authorized officer of Vaulten.
    
    Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.
    
    Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.

24. Limitation on Actions

    Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.

25. Copyright Infringement Notification

    As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by Vaulten:
    
    If you believe content hosted by Vaulten infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512):
    
    (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.

26. Miscellaneous

    You agree to reimburse Vaulten for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Vaulten.
    
    Vaulten is not responsible for misprints, errors or omissions in its advertising and promotional materials.
    
    If you have designated a person (whether by email, orally, by registering such person with Vaulten, or by granting such person access to your username and password) to have access to your Backup Data, in the possession or control of Vaulten, you hereby grant Vaulten the right to give that person access to your Backup Data, including without limitation in the event of your death or incapacity

27. Severability

    This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.

28. Billing Issues

    You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or Credit Card Company or other billing company. Send such notification to us at the Vaulten Contact Information indicated in the below Section (Vaulten Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.

29. Vaulten Contact information

    If you have any questions or comments, please contact us at . Although we strongly prefer email communication, you may also send regular postal mail to:
    
    Stral LLC
    100 Pearl St, 14th Floor, #8
    Hartford, CT 06103 USA