Cloud Backup - Terms Of Service
M.STEVENS CLOUD BACKUP SERVICE - TERMS OF SERVICE
We have designed our Services to meet the needs of various types of Subscribers; certain Services are designed solely for individual use, while others are designed for commercial use, as determined by us. Please use the appropriate Service.
To start your backup and/or restore process, and Subscription, you must: (i) provide your username, email address and select a password. We will refer to your username, email address and password or your Token as your "Credentials". You may not transfer or share your log-in information with any third parties, and you are solely responsible for maintaining the confidentiality of such log-in information. You acknowledge and agree that we rely on Credentials to know whether users accessing the Site and using our Services are authorized to do so. If someone accesses our Site or Services using your Credentials, we will rely on the Credentials and will assume that it is really you who is accessing the Site and Services. You are solely responsible for any and all use of your Credentials and Subscription and all activities that occur under or in connection with your Credentials or Subscription. You agree to be responsible for any act or omission of any users that access the Site or Services under your Credentials. You promise that all information you provide to us is true, accurate, current and complete, and you agree to maintain and promptly update such information to keep it true, accurate, current and complete. If we believe or suspect that such information is not true, accurate, current or complete, we may deny or terminate your access to the Site or Services (or any portion thereof).
HOW YOU BACKUP.
HOW YOU RESTORE.
BACKED UP DATA.
Your Backed Up Data may not be available or restorable if: (a) we have not completed copying your selected files or changed files and (b) you change your password on our Service or otherwise restrict our access to such Site; or (c) your Subscription expires or terminates. You represent and warrant that your Backed Up Data will comply with the terms and conditions of the Site on which it is located, and you agree that we may disclose such Backed Up Data to the Site to the extent required by the terms under which we are granted access to that Site.
We will take reasonable efforts to restrict access to the Backed Up Data to Subscribers using their applicable Credentials. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and you acknowledge that Site and the Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
MODIFICATIONS TO THE SERVICES.
RULES REGARDING CONTENT.
You represent and warrant that neither your Backed Up Data nor any Content you post will:
Infringe the copyright, trademark, trade secret, or other intellectual property or proprietary right of others;
Violate the privacy, publicity, or other rights of third parties;
Violate any other law, statute, ordinance or regulation, including laws regarding anti-discrimination and false advertising;
Be false or inaccurate or becomes false or inaccurate at any time;
Be or contain material that is discriminatory, unlawful, tortious, obscene, fraudulent, defamatory, harmful, threatening, pornographic, indecent, vulgar, harassing, discourteous, hateful, abusive or racially, ethnically, religiously, sexually or otherwise offensive, as determined by us in our sole discretion;
Disclose or provide information protected under any law, agreement or fiduciary relationship, including but not limited to proprietary or confidential information of others;
Misrepresent your identity in any way;
Contain any viruses, Trojan horses, worms, time bombs, cancelbots, or other disabling devices or other harmful component intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information;
Contain any advertising or solicitation for anything other than your Listing or service on the Site;
Advocate or encourage any illegal activity; or
Have the potential to create liability for us or cause us to violate the requirements of or to lose the services, in whole or in part, of our Internet service providers or other suppliers.
GENERAL RULES OF USER CONDUCT.
It is our goal to make access to our Site and Services a good experience for Visitors and all of our Subscribers. You agree not to, and represent and warrant that you will not reproduce, duplicate, copy, sell, resell or exploit any portion of the Site or Services, use of the Site or Services or access to the Site or Services for any purposes other than for which the Site or Services are being provided to you, or do any of the following:
Conduct or promote any illegal activities while using the Site or Services;
Upload, distribute or print anything that may be harmful to minors;
Attempt to reverse engineer or jeopardize the correct functioning of the Site, or otherwise attempt to derive the source code of the software (including the tools, methods, processes, and infrastructure) that enables or underlies the Site;
Attempt to gain access to secured portions of the Site or Services to which you do not possess access rights;
Upload or transmit any form of virus, worm, Trojan horse, or other malicious code;
Use the Site or Services to generate unsolicited email advertisements or spam;
Use the Site or Services to stalk, harass or harm another individual;
Use any high volume automatic, electronic or manual process to access, search or harvest information from the Site or Services (including without limitation robots, spiders or scripts);
Interfere in any way with the proper functioning of the Site and Services or interfere with or disrupt any servers or networks connected to the Site or Services, or disobey any requirements, procedures, policies or regulations of networks connected to the Site or Services;
Use any robot, spider, other automatic device, or manual process to extract, "screen scrape," monitor, "mine," or copy any static or dynamic web page on the Site or the Content contained on any such web page for commercial use without our prior express written permission;
Impersonate any person or entity, or otherwise misrepresent your affiliation with a person or entity; or
Mirror or frame the Site or any Content, place pop-up windows over its pages, or otherwise affect the display of its pages.
PRIVACY AND SECURITY.
The security of your personal information is important to us. While there is no such thing as "perfect security" on the Internet, we will take reasonable steps to help ensure the safety of your personal information. However, you understand and agree that such steps do not guarantee that the Site and the Services are invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
DURATION OF ACCESS.
You agree that we, in our sole discretion, may immediately terminate your access to the Site and Services at any time, for any reason, at our sole discretion. Upon termination or expiration of your access to the Services, you will no longer have the right to access or retrieve your Backed Up Data through the Site or Service and we may permanently delete your Backed Up Data from our servers. It is solely your responsibility to seek another source for your backup needs. YOU AGREE THAT WE WILL NOT BE LIABLE TO YOU OR ANY OTHER PARTY FOR ANY TERMINATION OF YOUR ACCESS TO THE Site OR SERVICES OR DELETION OF YOUR Backed Up DATA. TERMINATION OF YOUR SUBSCRIPTION WILL IN NO WAY MODIFY, CHANGE OR VOID ANY PAYMENT OBLIGATIONS YOU MAY HAVE INCURRED UP TO THE DATE OF TERMINATION THROUGH YOUR USE OF THE Site OR ANY SERVICES, WHETHER SUCH OBLIGATION IS TO US OR A THIRD PARTY.
THIRD PARTY CONTENT AND OTHER WEBSITES.
DISCLAIMER OF WARRANTIES.
LIMITATION OF LIABILITY.
YOU ACKNOWLEDGE AND AGREE THAT WE ARE ONLY WILLING TO PROVIDE ACCESS TO THE SITE AND TO PROVIDE THE SERVICES IF YOU AGREE TO CERTAIN LIMITATIONS OF OUR LIABILITY TO YOU AND TO THIRD PARTIES. YOU UNDERSTAND THAT TO THE EXTENT PERMITTED UNDER APPLICABLE LAW, IN NO EVENT WILL WE OR OUR OFFICERS, EMPLOYEES, DIRECTORS, PARENTS, SUBSIDIARIES, AFFILIATES, AGENTS OR LICENSORS BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF REVENUES, PROFITS, GOODWILL, USE, DATA, LOST OPPORTUNITIES, OR BUSINESS INTERRUPTIONS OR OTHER INTANGIBLE LOSSES (EVEN IF SUCH PARTIES WERE ADVISED OF, KNEW OF OR SHOULD HAVE KNOWN OF THE POSSIBILITY OF SUCH DAMAGES, AND NOTWITHSTANDING THE FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY), ARISING OUT OF OR RELATED TO YOUR USE OF OR ACCESS TO, OR THE INABILITY TO USE OR TO ACCESS, THE Site, THE SERVICES OR YOUR Backed Up DATA, REGARDLESS OF WHETHER SUCH DAMAGES ARE BASED ON CONTRACT, TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY), WARRANTY, STATUTE OR OTHERWISE.
IF YOU ARE DISSATISFIED WITH ANY PORTION OF THIS SITE OR THE SERVICES, YOUR SOLE AND EXCLUSIVE REMEDY IS TO DISCONTINUE USE OF THE SITE AND THE SERVICES. OUR TOTAL LIABILITY TO YOU FOR ALL CLAIMS ARISING FROM OR RELATED TO THE Site OR THE SERVICES IS LIMITED, IN AGGREGATE, TO THE GREATER OF (I) THE AMOUNT OF FEES ACTUALLY PAID BY YOU FOR USE OF THE SITE OR SERVICES IN THE TWELVE (12) MONTHS PRIOR TO THE DATE THE CLAIM AROSE; OR (II) ONE POUND (£1.00 GBP). Some jurisdictions do not allow the exclusion of certain warranties or the limitation or exclusion of liability for incidental or consequential damages. Accordingly, some of the above limitations and disclaimers may not apply to you. To the extent that we may not, as a matter of applicable law, disclaim any implied warranty or limit liabilities, the scope and duration of such warranty and the extent of our liability will be the minimum permitted under such applicable law.
Without limiting the foregoing, under no circumstances WILL WE or our licensors be held liable for any delay or failure in performance resulting directly or indirectly from acts of nature, forces, or causes beyond our reasonable control, including, without limitation, Internet failures, computer equipment failures, telecommunication equipment failures, other equipment failures, electrical power failures, strikes, labor disputes, riots, insurrections, civil disturbances, shortages of labor or materials, fires, floods, storms, explosions, acts of God, war, governmental actions, orders of domestic or foreign courts or tribunals, OR non-performance of third parties.
We can only give you the benefits of our service by conducting business through the Internet, and therefore we need you to consent to our giving you Communications electronically. This Section informs you of your rights when receiving Communications from us electronically. For contractual purposes, you (i) consent to receive communications from us in an electronic form; and (ii) agree that all terms and conditions, agreements, notices, documents, disclosures, and other communications ("Communications") that we provide to you electronically satisfy any legal requirement that such Communications would satisfy if it were in a writing. Your consent to receive Communications and do business electronically, and our agreement to do so, applies to all of your interactions and transactions with us. The foregoing does not affect your non-waivable rights. You may withdraw your consent to receive Communications electronically by contacting us in the manner described below. If you withdraw your consent, from that time forward, you must stop using the Site and Services. The withdrawal of your consent will not affect the legal validity and enforceability of any obligations or any electronic Communications provided or business transacted between us prior to the time you withdraw your consent. Please keep us informed of any changes in your email or mailing address so that you continue to receive all Communications without interruption.
You are thus GIVING UP YOUR RIGHT TO GO TO COURT to assert or defend your rights under this contract EXCEPT for matters that may be taken to small claims court. Your rights will be determined by a NEUTRAL ARBITRATOR and NOT a judge or jury. You are entitled to a FAIR HEARING, BUT the arbitration procedures are SIMPLER AND MORE LIMITED THAN RULES APPLICABLE IN COURT. Arbitrator decisions are as enforceable as any court order and are subject to VERY LIMITED REVIEW BY A COURT.
You and M.Stevens must abide by the following rules: (a) for any claim that could otherwise be brought in small claims court, the arbitration shall be conducted solely based on written submissions and, if the arbitrator deems it appropriate, a telephonic hearing; (b) if the claim exceeds what can be recovered in a small claims court, the arbitration shall be conducted solely based on written submissions or a telephonic hearing, unless the arbitrator deems a face-to-face hearing is appropriate, in which case one should be held at a location agreed to by you and M.Stevens, and if the parties cannot agree on a location for the hearing, the arbitrator will determine a location for the proceedings which is reasonably convenient to both parties with due consideration of their ability to travel and other pertinent circumstances; (c) the arbitrator’s ruling is binding and not merely advisory; (d) ANY CLAIMS BROUGHT BY YOU OR M.Stevens MUST BE BROUGHT IN THE PARTIES’ INDIVIDUAL CAPACITY, AND NOT AS A PLAINTIFF OR CLASS MEMBER IN ANY PURPORTED CLASS OR REPRESENTATIVE PROCEEDING; (e) THE ARBITRATOR MAY NOT CONSOLIDATE MORE THAN ONE PERSON’S CLAIMS, AND MAY NOT OTHERWISE PRESIDE OVER ANY FORM OF A REPRESENTATIVE OR CLASS PROCEEDING, (f) in the event that you are able to demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, M.Stevens will pay as much of your filing and hearing fees in connection with the arbitration as the arbitrator deems necessary to prevent the arbitration from being cost-prohibitive as compared to the cost of litigation, (g) M.Stevens also reserves the right in its sole and exclusive discretion to assume responsibility for all of the costs of the arbitration; (h) the arbitrator shall honor claims of privilege and privacy recognized at law; (i) a decision by the arbitrator (including any finding of fact and/or conclusion of law) against either you or M.Stevens shall be confidential unless otherwise required to be disclosed by law or by any administrative body and may not be collaterally used against either of them in existing or subsequent litigation or arbitration involving any other person/M.Stevens customer; and (j) each side pays its own attorneys’ fees and expenses unless there is a statutory provision that requires the prevailing party to be paid its fees’ and litigation expenses.
With the exception of subparts (d) and (e) in the paragraph above (prohibiting arbitration on a class or collective basis), if any part of this arbitration provision is deemed to be invalid, unenforceable or illegal, or otherwise conflicts with the Rules and Procedures, then the balance of this arbitration provision shall remain in effect and shall be construed in accordance with its terms as if the invalid, unenforceable, illegal or conflicting provision were not contained herein. If, however, either subpart (d) or (e) is found to be invalid, unenforceable or illegal, then the entirety of this arbitration provision shall be null and void, and neither you nor M.Stevens shall be entitled to arbitration. In the event this arbitration provision is held unenforceable by a court, or in the event that the nominated arbitrator refuses to arbitrate the dispute, all controversies, disputes, demands, counts, claims, or causes of action between you and M.Stevens shall be exclusively brought in the state or federal courts specified in subsection "(d)" above.