SoftThinks Backup And Recovery (“SBAR”) Terms of Service
THESE TERMS OF SERVICE (THE "TERMS") ARE A LEGAL AGREEMENT BETWEEN YOU ("CUSTOMER") AND SOFTTHINKS USA, INC. ("SOFTTHINKS"). BY CLICKING THE "I ACCEPT" BUTTON OR USING SBAR, CUSTOMER ACKNOWLEDGES THAT CUSTOMER HAS REVIEWED AND ACCEPTS THESE TERMS. IF YOU ARE AGREEING TO THESE TERMS AS AN INDIVIDUAL, “CUSTOMER” REFERS TO YOU INDIVIDUALLY. IF YOU ARE AGREEING TO THESE TERMS AS A REPRESENTATIVE OF AN ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THAT ENTITY AND “CUSTOMER” REFERS TO THAT ENTITY AND ALL USERS PERMITTED TO USE SBAR USING CUSTOMER’S ACCOUNT. IF CUSTOMER DOES NOT AGREE WITH ALL OF THESE TERMS, DO NOT ACCESS OR OTHERWISE USE SBAR. SOFTTHINKS MAY MAKE CHANGES TO SBAR AT ANY TIME. IN ADDITION, SOFTTHINKS MAY MAKE CHANGES TO THESE TERMS AT ANY TIME. IN SUCH CASE SOFTTHINKS WILL POST A NOTICE ON SBAR AND WILL NOTIFY CUSTOMERS WHO HAVE AN ACTIVE SUBSCRIPTION FOR SBAR. CUSTOMER’S CONTINUED USE OF SBAR AFTER SUCH CHANGES HAVE BEEN POSTED WILL SIGNIFY CUSTOMER’S ASSENT TO AND ACCEPTANCE OF THE REVISED TERMS.
1.1 “Activation Date” means the date Customer starts to use SBAR.
1.2 “Customer Data” means all data submitted, stored, posted, displayed, or otherwise transmitted by or on behalf of Customer or any User and received and stored locally or by the SBAR service.
1.3 “Customer System” means Customer’s internal website(s), servers, computing hardware and other equipment and software.
1.4 “Documentation” means the online user instructions and help files made available by SoftThinks for use with SBAR, as may be updated from time to time by SoftThinks.
1.5 “Intellectual Property Rights” means all intellectual property rights or similar proprietary rights, including (a) patent rights and utility models, (b) copyrights and database rights, (c) trademarks, trade names, domain names and trade dress and the goodwill associated therewith, (d) trade secrets, (e) mask works, and (f) industrial design rights; in each case, including any registrations of, applications to register, and renewals and extensions of, any of the foregoing in any jurisdiction in the world.
1.6 “Malicious Code” means viruses, worms, time bombs, Trojan horses and other harmful or malicious code, files, scripts, agents or programs.
1.7 “Services” means SBAR and Support Services.
1.8 “Subscription Term” means the subscription period for Customer’s paid use of SBAR, if any.
1.9 “SBAR” means the SoftThinks’ SBAR service provided by SoftThinks to Customer pursuant to these Terms that allows to backup and restore Customer Data
1.10 “Support Services” means the support and maintenance services offered by SoftThinks from time to time, if any
1.11 “Third Party Offerings” means certain software or services delivered or performed by third parties that is required for the operation of SBAR or other application subscription services, and any associated offline products provided by third parties, which interoperate with SBAR.
1.12 “Users” means those third parties who are authorized by Customer to access and use Customer’s SBAR account.
2. ORDERS; LICENSES; AND RESTRICTIONS.
2.1 Registration. Subject to the terms and conditions contained in these Terms, Customer may be considered registered to access and use either the free or paid version of SBAR after downloading and installing SBAR. SoftThinks may, in its sole discretion, decide whether an online registration will be required in the future. Customer agrees that its decision to use SBAR hereunder is neither contingent on the delivery of any future functionality or features nor dependent on any oral or written public comments made by SoftThinks regarding any future functionality or features.
2.2 Access and Use License. Subject to Customer’s compliance with the terms and conditions contained in these Terms, SoftThinks hereby grants to Customer, during the relevant Subscription Term (if applicable), a limited, non-exclusive, non-transferable (a) right for its Users to access and use SBAR in accordance with the Documentation, and (b) license to download any software offered by Customer and required for access and use of SBAR (the “Downloadable Software”), in each case solely for Customer’s personal or internal business purposes and not for the benefit of any other person or entity. Customer’s use of SBAR may be subject to certain limitations, such as, for example, limits on storage capacity for Customer Data. Any such limitations will be specified in the applicable Documentation. Customer's use of Downloadable Software may be subject to additional terms and conditions (the “Downloadable Software License”), and Customer agrees to comply with all such terms and conditions as a condition to using such Downloadable Software. In the event of any inconsistency between the terms of any Downloadable Software License and these Terms, the terms of the Downloadable Software License shall apply only with respect to the Downloadable Software that license references and no other Downloadable Software or SBAR.
2.3 Restrictions. Customer shall not, directly or indirectly, and Customer shall not permit any User or third party to: (a) create more than one personal account, if applicable; (b) reverse engineer, decompile, disassemble or otherwise attempt to discover the object code, source code or underlying ideas or algorithms of SBAR; (c) modify, translate, or create derivative works based on any element of SBAR or any related Documentation; (d) rent, lease, distribute, sell, resell, assign, or otherwise transfer its rights to use SBAR; (e) use SBAR for file sharing or timesharing purposes or otherwise for the benefit of any person or entity other than for the benefit of Customer and Users; (f) remove any proprietary notices from the Documentation; (g) publish or disclose to third parties any evaluation of SBAR without SoftThinks's prior written consent; (h) use SBAR for any purpose other than its intended purpose; (i) interfere with or disrupt the integrity or performance of SBAR; or (j) attempt to gain unauthorized access to SBAR or SBAR related systems or networks.
2.4 Reservation of Rights. Except as expressly granted in these Terms, there are no other licenses granted to Customer, express, implied or by way of estoppel. All rights not granted in these Terms are reserved by SoftThinks. Customer will not provide any false personal information on SBAR, or create an account, if applicable, for anyone other than Customer without permission.
3. PASSWORDS; SECURITY.
3.1 Passwords. Customer might be required to create a login and password for use in accessing and using SBAR. In that case, customer shall be responsible for maintaining the confidentiality of such user logins and passwords and for ensuring that the user login and password is used only by Customer. Customer is solely responsible for any and all access and use of SBAR that occurs using logins and passwords. Customer shall restrict its Users from sharing passwords. Customer agrees to immediately notify SoftThinks of any unauthorized use of any account or login and password, or any other breach of security known to Customer. SoftThinks shall have no liability for any loss or damage arising from Customer’s failure to comply with the terms set forth in this Section.
3.2 No Circumvention of Security. Neither Customer nor any User may circumvent or otherwise interfere with any user authentication or security of SBAR. Customer will immediately notify SoftThinks of any breach, or attempted breach, of security known to Customer.
3.3 Security. SoftThinks will use commercially reasonable efforts to maintain appropriate administrative, physical and technical safeguards for protection of the security, confidentiality and integrity of Customer Data. Notwithstanding the foregoing, Customer acknowledges that, notwithstanding any security precautions deployed by SoftThinks, the use of, or connection to, the Internet provides the opportunity for unauthorized third parties to circumvent such precautions and illegally gain access to SBAR and Customer Data. SoftThinks cannot and does not guaranty the privacy, security, integrity or authenticity of any information transmitted over or stored in any system connected to or accessible via the Internet or otherwise or that any such security precautions will be adequate or sufficient.
3.4 Privacy Policy. SoftThinks’ policy regarding the privacy and use of customers’ registration information and the information SoftThinks collects about the devices that use SBAR is set forth in our Privacy Policy http://legal.softthinks.com/privacy/SbarPrivacy.html , which may be modified and amended by us from time to time. By accepting these Terms, Customer is also acknowledging that Customer agrees to the terms of the Privacy Policy.
4. CUSTOMER OBLIGATIONS.
4.1 Customer System. Customer is responsible for (a) obtaining, deploying and maintaining the Customer System, and all computer hardware, software, modems, routers and other communications equipment necessary for Customer and its Users to access and use SBAR; (b) contracting with third party ISP, telecommunications and other service providers to access and use SBAR via the Internet if applicable; and (c) paying all third party fees and access charges incurred in connection with the foregoing. Except as specifically set forth in these Terms, SoftThinks shall not be responsible for supplying any hardware, software or other equipment to Customer under these Terms.
4.2 Acceptable Use Policy. Customer shall be solely responsible for its actions and the actions of its Users while using SBAR. Customer acknowledges and agrees: (a) to abide by all local, state, national, and international laws and regulations applicable to Customer’s use of SBAR, including without limitation the provision and storage of Customer Data; (b) not to send or store data on or with SBAR which violates the rights of any individual or entity established in any jurisdiction; (c) not to upload in any way any information or content that contain Malicious Code or data that may damage the operation of SBAR or another's computer; (d) not to upload in any way any data regarding an individual’s financial or economic identity, sexual orientation, religious beliefs, medical or physical identity, including any information comprised of either “Protected Health Information” subject to and defined by the Health Insurance Portability and Accountability Act, or an individual’s first name and last name, or first initial and last name, in combination with any one or more of the following data elements that relate to such individual: Social Security number, driver's license number or state-issued identification card number, financial account number, or credit or debit card number, with or without any required security code, access code, personal identification number or password, that would permit access to an individual’s financial account; (e) not to use SBAR for illegal, fraudulent, unethical or inappropriate purposes; (f) not to interfere or disrupt networks connected to SBAR or interfere with other ability to access or use SBAR; (g) not to distribute, promote or transmit through SBAR any unlawful, harmful, obscene, pornographic or otherwise objectionable material of any kind or nature; (h) not to transmit or post any material that encourages conduct that could constitute a criminal offense or give rise to civil liability; (i) not to interfere with another customer’s use and enjoyment of SBAR or another person or entity's use and enjoyment of similar services; (j) not to use SBAR in any manner that impairs SBAR, including without limitation the servers and networks on which SBAR is provided; (k) to comply with all regulations, policies and procedures of networks connected to SBAR and SoftThinks’ service providers; (l) to use SBAR only in accordance with the Documentation; (m) to be responsible to setup the time and frequency of the backup; (n) not to create any links, whether on a web page, in an e-mail or otherwise, that direct anyone to any part of your Account; and (o) not to attempt to create a new account if SoftThinks has disabled your account for any reason.
Customer acknowledges and agrees that SoftThinks neither endorses the contents of any Customer communications, Customer Data, or Other Information (as defined in Section 9.2 below) nor assumes any responsibility for any offensive material contained therein, any infringement of third party Intellectual Property Rights arising therefrom or any crime facilitated thereby. SoftThinks may remove any violating content posted or stored using SBAR or transmitted through SBAR, without notice to Customer. Notwithstanding the foregoing, SoftThinks does not guarantee, and is not obligated to verify, authenticate, monitor or edit the Customer Data, Other Information, or any other information or data input into or stored with SBAR for completeness, integrity, quality, accuracy or otherwise. Customer shall be responsible and liable for the completeness, integrity, quality and accuracy of Customer Data and Other Information input into SBAR. SoftThinks reserves the right to amend, alter, or modify Customer’s conduct requirements as set forth in these Terms at any time. SoftThinks may deliver notice of such updated requirements to Customer via e-mail or through SBAR. Customer’s continued access to and use of SBAR following issuance of such updated Customer requirements shall constitute Customer’s acceptance thereof. SoftThinks may upon written notice to Customer amend this Section 4.2.
4.3 Accuracy of Customer’s Contact Information; Email Notices. Customer agrees to provide accurate, current and complete information as necessary for SoftThinks to communicate with Customer from time to time regarding the Services, issue invoices or accept payment, or contact Customer for other account-related purposes. Customer agrees to keep any online account information current and inform SoftThinks of any changes in Customer’s legal business name, address, email address and phone number. Customer agrees to accept emails from SoftThinks at the e-mail addresses specified by its Users for login purposes. In addition, Customer agrees that SoftThinks may rely and act on all information and instructions provided to SoftThinks from the above-specified e-mail addresses.
4.4 Temporary Suspension. SoftThinks may temporarily suspend Customer’s or its Users’ access to SBAR in the event that either Customer any of its Users is engaged in, or SoftThinks in good faith suspects Customer or any of their Users is engaged in, any unauthorized conduct (including, but not limited to any violation of these Terms). SoftThinks will attempt to contact Customer prior to or contemporaneously with such suspension; provided, however, that SoftThinks’ exercise of the suspension rights herein shall not be conditioned upon Customer’s receipt of any notification. A suspension may take effect for Customer’s set of devices. Customer agrees that SoftThinks shall not be liable to Customer, any of its Users, or any other third party if SoftThinks exercises its suspension rights as permitted by this Section. Notwithstanding anything in this Section to the contrary, SoftThinks’ suspension of SBAR is in addition to any other remedies that SoftThinks may have under these Terms or otherwise, including but not limited to termination of these Terms for cause. Additionally, if there are repeated incidences of suspension, regardless of the same or different cause and even if the cause or conduct is ultimately cured or corrected, SoftThinks may, in its reasonable discretion, determine that such circumstances, taken together, constitute a material breach.
4.5 Evaluations. At SoftThinks’s request, Customer will provide SoftThinks with written or oral report(s) of the results of Customer’s evaluation of SBAR, including, but not limited to, a report of any errors that Customer has discovered in SBAR.
5. AVAILABILITY; SUPPORT SERVICES.
5.1 Availability. Subject to the terms and conditions of these Terms, SoftThinks will use commercially reasonable efforts to make SBAR available with minimal downtime 24 hours a day, 7 days a week; provided, however, that the following are excepted from availability commitments: (a) planned downtime (with regard to which SoftThinks will use commercially reasonable efforts to provide at least 24 hours advance notice) and routine maintenance times currently scheduled for every Sunday, 10:01 p.m. to 04:00 a.m. Pacific Time and as otherwise specified by SoftThinks, and (b) any unavailability caused by circumstances beyond SoftThinks’ reasonable control, including without limitation, acts of God, acts of government, flood, fire, earthquakes, civil unrest, acts of terror, strikes or other labor problems, Internet service provider failures or delays, or the unavailability or modification by third parties of Third Party Offerings. Certain enhancements to SBAR made generally available at no cost to all subscribing customers during the applicable Subscription Term will be made available to Customer at no additional charge. However, the availability of some new enhancements to SBAR may require the payment of additional fees, and SoftThinks will determine at its sole discretion whether access to any other such new enhancements will require an additional fee. These Terms will apply to, and SBAR includes, any enhancements, updates, upgrades and new modules to SBAR subsequently provided by SoftThinks to Customer hereunder.
5.2 Support. SoftThinks makes a variety of Support Services offerings available to its customers and will provide Customer with the level of support to which Customer is entitled based on Customer’s usage tier.
6. FEES AND PAYMENT.
6.1 Fees. Customer agrees to pay all applicable fees using one of the payment methods SoftThinks supports. Except as otherwise specified in these Terms, (a) fees are quoted and payable in local currency, and (b) fees are based on services purchased, regardless of actual usage. All amounts payable under these Terms will be made without setoff or counterclaim, and without any deduction or withholding.
6.2 Paid Service. When Customer registers for a subscription to use a paid version of SBAR (a “Subscription”), SoftThinks will charge Customer’s credit card for on the date that SoftThinks processes the order for the Subscription. Subscriptions and the rights and privileges provided to you as a subscriber are personal and non-transferable. All Subscription fees are non-refundable under any circumstances. SoftThinks may suspend or terminate Customer’s account and/or access to SBAR if Customer’s payment is late and/or Customer’s offered payment method (e.g., credit card) cannot be processed. By providing a payment method, Customer expressly authorizes SoftThinks and/or SoftThinks’ third party payment processor to charge the applicable fees on said payment method as well as taxes and other charges incurred thereto at regular intervals. Customer agrees that SoftThinks may invoice Customer for any unpaid fees. Non-renewal, or cancellation of Customer’s paid subscription will cause Customer’s account to revert to a free account if available.
6.3 Pricing. The fee that SoftThinks will charge for Customer’s Subscription will be the price posted on the SBAR site on the date that Customer registers. SoftThinks reserves the right to change prices for Subscriptions at any time, and does not provide price protection or refunds in the event of promotions or price decreases. If SoftThinks changes its Subscription fees, SoftThinks will provide 30 days’ notice on the site and, if Customer is a current subscriber, to the email address SoftThinks has on record for Customer.
6.4 Automatic Renewals. IMPORTANT NOTICE: UNLESS CUSTOMER CANCELS PRIOR TO THE EXPIRATION OF ITS CURRENT SUBSCRIPTION, SOFTTHINKS WILL AUTOMATICALLY RENEW CUSTOMER’S SUBSCRIPTION ON EACH YEARLY ANNIVERSARY OF THE DATE THAT SOFTTHINKS INITIALLY CHARGED CUSTOMER’S CREDIT CARD FOR THE FIRST SUBSCRIPTION FEE, AND SOFTTHINKS WILL CHARGE CUSTOMER’S CREDIT CARD WITH THE APPLICABLE RENEWAL SUBSCRIPTION FEE AND ANY TAXES THAT MAY BE IMPOSED ON SUCH FEE PAYMENT. MONTHLY SUBSCRIPTIONS MUST BE CANCELLED AT LEAST 5 DAYS PRIOR TO THE MONTHLY RENEWAL DATE. You may cancel your membership by clicking on the “Cancel your subscription” link in the Subscription Cancelation section of your SBAR order confirmation email provided that any Subscription fees charged prior to the effective date of cancellation will not be refunded, in whole or in part.
7. REPRESENTATIONS AND WARRANTIES; DISCLAIMER.
7.1 Mutual Representations and Warranties. Each party represents, warrants and covenants that: (a) it has the full power and authority to enter into these Terms and to perform its obligations hereunder, without the need for any consents, approvals or immunities not yet obtained; and (b) its acceptance of and performance under these Terms shall not breach any oral or written agreement with any third party or any obligation owed by it to any third party to keep any information or materials in confidence or in trust.
7.2 Evaluations of New Services. From time to time SoftThinks may invite Customer to try, at no charge, SoftThinks products or services that are not generally available to SoftThinks customers (“Non-GA Services”). Customer may accept or decline any such trial in its sole discretion. Any Non-GA Services will be clearly designated as beta, pilot, limited release, developer preview, non-production or by a description of similar import. Non-GA Services are provided for evaluation purposes and not for production use, are not supported, may contain bugs or errors (but shall not contain any Malicious Code), and may be subject to additional terms that shall be provided by SoftThinks to Customer prior to or concurrent with SoftThinks’ invitation to the applicable Non-GA Services. Non-GA Services are not considered “Services” hereunder. SoftThinks has the right to discontinue Non-GA Services at any time in its sole discretion and may never make them generally available.
7.3 Disclaimer. THE WARRANTIES SET FORTH IN THIS SECTION 7, SBAR, SUPPORT SERVICES, THIRD-PARTY OFFERINGS AND ANY NON-GA SERVICES ARE PROVIDED ON AN AS-IS BASIS. CUSTOMER’S USE OF SBAR, SUPPORT SERVICES, THIRD-PARTY OFFERINGS AND NON-GA SERVICES IS AT ITS OWN RISK. SOFTTHINKS DOES NOT MAKE, AND HEREBY DISCLAIMS, ANY AND ALL OTHER EXPRESS, STATUTORY AND IMPLIED WARRANTIES, INCLUDING, BUT NOT LIMITED TO, WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NONINFRINGEMENT AND TITLE, QUALITY, SUITABILITY, OPERABILITY, CONDITION, SYSTEM INTEGRATION, NON-INTERFERENCE, WORKMANSHIP, TRUTH, ACCURACY (OF DATA OR ANY OTHER INFORMATION OR CONTENT), ABSENCE OF DEFECTS, WHETHER LATENT OR PATENT, AND ANY WARRANTIES ARISING FROM A COURSE OF DEALING, USAGE, OR TRADE PRACTICE. ANY WARRANTIES MADE BY SOFTTHINKS ARE FOR THE BENEFIT OF THE CUSTOMER ONLY AND NOT FOR THE BENEFIT OF ANY THIRD PARTY. ANY MATERIALS PROVIDED THROUGH SBAR ARE LICENSED AND NOT SOLD.
NO AGENT OF SOFTTHINKS IS AUTHORIZED TO ALTER OR EXPAND THE WARRANTIES OF SOFTTHINKS AS SET FORTH HEREIN. SOFTTHINKS DOES NOT WARRANT THAT: (A) THE USE OF THE SERVICES OR NON-GA SERVICES WILL BE SECURE, TIMELY, UNINTERRUPTED OR ERROR-FREE OR THAT THEY WILL OPERATE IN COMBINATION WITH ANY OTHER HARDWARE, SOFTWARE, SYSTEM OR DATA; (B) THE SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (C) ANY STORED DATA WILL BE ACCURATE OR RELIABLE; (D) THE QUALITY OF ANY INFORMATION OR OTHER MATERIAL OBTAINED BY CUSTOMER THROUGH THE SERVICES OR NON-GA SERVICES WILL MEET CUSTOMER’S REQUIREMENTS OR EXPECTATIONS; (E) THE SERVICES AND NON-GA SERVICES WILL BE ERROR-FREE OR THAT ERRORS OR DEFECTS IN THE SERVICES AND NON-GA SERVICES WILL BE CORRECTED; OR (F) THE SERVER(S) THAT MAKE THE SERVICES AND NON-GA SERVICES AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. THE SERVICES AND NON-GA SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. SOFTTHINKS IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGES RESULTING FROM SUCH PROBLEMS.
Customer shall defend SoftThinks and its licensors and their respective officers, directors and employees (“SoftThinks Indemnified Parties”) from and against any and all Third-Party Claims which arise out of or relate to: (a) a claim or threat that the Customer Data or Customer System (and the exercise by SoftThinks of the rights granted herein with respect thereto) infringes, misappropriates or violates any third party’s Intellectual Property Rights; or (b) Customer’s use or alleged use of SBAR other than as permitted under these Terms. Customer shall pay all damages, costs and expenses, including attorneys’ fees and costs (whether by settlement or award of by a final judicial judgment) incurred by the SoftThinks Indemnified Parties from any such Third-Party Claim.
9.1 SBAR. As between SoftThinks and Customer, all rights, title and interest in SBAR and any other SoftThinks materials furnished or made available hereunder, and all modifications and enhancements thereof, and all suggestions, ideas and feedback proposed by Customer regarding the SoftThinks materials, including all copyright rights, patent rights and other Intellectual Property Rights in each of the foregoing, belong to and are retained solely by SoftThinks or SoftThinks’ licensors and providers, as applicable. Customer hereby does and will irrevocably assign to SoftThinks all evaluations, ideas, feedback and suggestions made by Customer to SoftThinks regarding SBAR (collectively, “Feedback”) and all Intellectual Property Rights in the Feedback.
9.2 Customer Data. As between SoftThinks and Customer, all right, title and interest in (a) the Customer Data, (b) other information input into SBAR by Customer (collectively, “Other Information”) and (c) all Intellectual Property Rights in each of the foregoing, belong to and are retained solely by Customer. Customer hereby grants to SoftThinks a limited, non-exclusive, royalty-free, worldwide license to use the Customer Data and perform all acts with respect to the Customer Data as may be necessary for SoftThinks to provide the Services to Customer, and a non-exclusive, perpetual, irrevocable, worldwide, royalty-free, fully paid license to use, reproduce, modify and distribute the Other Information as a part of the Aggregated Statistics (as defined in Section 9.3 below). To the extent that receipt of the Customer Data requires SoftThinks to utilize any account information from a third party service provider, Customer shall be responsible for obtaining and providing relevant account information and passwords, and SoftThinks hereby agrees to access and use the Customer Data solely for Customer’s benefit and as set forth in these Terms. As between SoftThinks and Customer, Customer is solely responsible for the accuracy, quality, integrity, legality, reliability, and appropriateness of all Customer Data.
9.3 Aggregated Statistics. Notwithstanding anything else in these Terms or otherwise, SoftThinks may monitor Customer’s use of the Services and use data and information related to such use, Customer Data, and Other Information in an aggregate and anonymous manner, including to compile statistical and performance information related to the provision and operation of SBAR (“Aggregated Statistics”). As between SoftThinks and Customer, all right, title and interest in the Aggregated Statistics and all Intellectual Property Rights therein, belong to and are retained solely by SoftThinks. Customer acknowledges that SoftThinks will be compiling Aggregated Statistics based on Customer Data, Other Information, and information input by other customers into SBAR and Customer agrees that SoftThinks may (a) make such Aggregated Statistics publicly available, and (b) use such information to the extent and in the manner required by applicable law or regulation and for purposes of data gathering, analysis, service enhancement and marketing, provided that such data and information does not identify Customer or its Confidential Information.
10.1 No Consequential Damages. It is solely the Customer’s responsibility to complete a backup of all existing data, software and programs on supported devices. NEITHER SOFTTHINKS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, OR ANY DAMAGES FOR LOST DATA, BUSINESS INTERRUPTION, LOST PROFITS, LOST REVENUE OR LOST BUSINESS, ARISING OUT OF OR IN CONNECTION WITH THESE TERMS, EVEN IF SOFTTHINKS OR ITS LICENSORS OR SUPPLIERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, INCLUDING WITHOUT LIMITATION, ANY SUCH DAMAGES ARISING OUT OF THE LICENSING, PROVISION OR USE OF SBAR, SUPPORT SERVICES OR THE RESULTS THEREOF. SOFTTHINKS WILL NOT BE LIABLE FOR THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES.
10.2 Limits on Liability. NEITHER SOFTTHINKS NOR ITS LICENSORS OR SUPPLIERS SHALL BE LIABLE FOR CUMULATIVE, AGGREGATE DAMAGES GREATER THAN AN AMOUNT EQUAL TO THE LESSER OF (a) THE AMOUNTS PAID BY CUSTOMER TO SOFTTHINKS UNDER THESE TERMS DURING THE PERIOD OF SIX (6) MONTHS PRECEDING THE DATE ON WHICH THE CLAIM FIRST ACCRUED, AND (b) $100.
10.3 Essential Purpose. Customer acknowledges that the terms in this Section 10 (LIMITATION OF LIABILITY) SHALL APPLY TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW AND SHALL APPLY EVEN IF AN EXCLUSIVE OR LIMITED REMEDY STATED HEREIN FAILS OF ITS ESSENTIAL PURPOSE.
11. TERMINATION.
11.1 Term. SoftThinks reserves the right to terminate free access to SBAR at any time, with or without notice. These Terms will automatically terminate or expire, and Customer’s access to stored data will be disabled upon: (a) SoftThink’s discontinuation of SBAR; (b) Customer’s failure to comply with these Terms; or (c) the occurrence of any action that SoftThinks determines is inappropriate or disruptive to SBAR or to any other user of SBAR. Customer acknowledges and agrees that after any non-renewal, cancellation, or expiration, SoftThinks may immediately delete all of Customer’s data backed-up online on SBAR, if applicable.
11.2 Effects of Termination. Upon cancellation, expiration or termination of these Terms, (a) Customer’s use of and access to SBAR and the performance of all Support Services shall cease; (b) Customer shall uninstall all Downloadable Software from Customer’s devices; and (c) all fees and other amounts owed to SoftThinks shall be immediately due and payable by Customer. SoftThinks shall have no obligation to maintain or provide any Customer Data and may thereafter, unless legally prohibited, delete all Customer Data in its systems or otherwise in its possession or under its control.
11.3 Survival. This Section and Sections 1, 2.2, 7, 8, 9, 10, 12, and 13 shall survive any termination or expiration of these Terms.
12. DISPUTE RESOLUTION AND ARBITRATION; CLASS ACTION WAIVER.
Please read this “Dispute Resolution and Arbitration; Class Action Waiver” provision (this “Provision”) carefully. It provides that all Disputes (as defined below) between you and SoftThinks shall be resolved by binding arbitration. Arbitration replaces the right to go to court. In the absence of this arbitration agreement, you may otherwise have a right or opportunity to bring claims in a court, before a judge or jury, and/or to participate in or be represented in a case filed in court by others (including, but not limited to, class actions). Except as otherwise provided, entering into this agreement constitutes a waiver of your right to litigate claims and all opportunity to be heard by a judge or jury. There is no judge or jury in arbitration, and court review of an arbitration award is limited. The arbitrator must follow this agreement and can award the same damages and relief as a court (including attorney’s fees).
For the purpose of this Provision, “SoftThinks” means SoftThinks USA, Inc. and its parents, subsidiary, and affiliate companies, and each of their respective officers, directors, employees, and agents. The term “Dispute” means any dispute, claim, or controversy between you and SoftThinks regarding any aspect of your relationship with SoftThinks, whether based in contract, statute, regulation, ordinance, tort (including, but not limited to, fraud, misrepresentation, fraudulent inducement, or negligence), or any other legal or equitable theory, and includes the validity, enforceability or scope of this Provision (with the exception of the enforceability of the Class Action Waiver clause below). “Dispute” is to be given the broadest possible meaning that will be enforced, and shall include any claims against other parties relating to services or products provided or billed to you (such as SoftThinks’ licensors, suppliers, dealers or third-party vendors) whenever you also assert claims against us in the same proceeding.
YOU AND SOFTTHINKS EACH AGREE THAT, EXCEPT AS PROVIDED BELOW, ANY AND ALL DISPUTES, AS DEFINED ABOVE, WHETHER PRESENTLY IN EXISTENCE OR BASED ON ACTS OR OMISSIONS IN THE PAST OR IN THE FUTURE, WILL BE RESOLVED EXCLUSIVELY AND FINALLY BY BINDING ARBITRATION RATHER THAN IN COURT IN ACCORDANCE WITH THIS PROVISION.
Pre-Arbitration Claim Resolution
For all Disputes, whether pursued in court or arbitration, you must first give SoftThinks an opportunity to resolve the Dispute. You must commence this process by mailing written notification to SoftThinks USA, Inc., 11940 Jollyville Rd Suite 225-S Austin, TX 78759. That written notification must include (1) your name, (2) your address, (3) a written description of your Claim, and (4) a description of the specific relief you seek. If SoftThinks does not resolve the Dispute within 45 days after it receives your written notification, you may pursue your Dispute in arbitration. You may pursue your Dispute in a court only under the circumstances described below.
Exclusions from Arbitration/Right to Opt Out
Notwithstanding the above, you or SoftThinks may choose to pursue a Dispute in court and not by arbitration if (a) the Dispute qualifies, it may be initiated in small claims court; or (b) YOU OPT-OUT OF THESE ARBITRATION PROCEDURES WITHIN 30 DAYS FROM THE DATE THAT YOU FIRST CONSENT TO THIS AGREEMENT (the “Opt-Out Deadline”). You may opt out of this Provision by mailing written notification to SoftThinks USA, Inc., 11940 Jollyville Rd Suite 225-S Austin, TX 78759. Your written notification must include (1) your name, (2) your address, and (3) a clear statement that you do not wish to resolve disputes with SoftThinks through arbitration. Your decision to opt-out of this Arbitration Provision will have no adverse effect on your relationship with SoftThinks. Any opt-out request received after the Opt-Out Deadline will not be valid and you must pursue your Dispute in arbitration or small claims court.
Arbitration Procedures
If this Provision applies and the Dispute is not resolved as provided above (Pre-Arbitration Claim Resolution) either you or SoftThinks may initiate arbitration proceedings. The American Arbitration Association (“AAA”), www.adr.org, or JAMS, www.jamsadr.com, will arbitrate all Disputes, and the arbitration will be conducted before a single arbitrator. The arbitration shall be commenced as an individual arbitration, and shall in no event be commenced as a class arbitration. All issues shall be for the arbitrator to decide, including the scope of this Provision.
For arbitration before AAA, for Disputes of less than $75,000, the AAA’s Supplementary Procedures for Consumer-Related Disputes will apply; for Disputes involving $75,000 or more, the AAA’s Commercial Arbitration Rules will apply. In either instance, the AAA’s Optional Rules for Emergency Measures of Protection shall apply. The AAA rules are available at www.adr.org or by calling 1‑800‑778‑7879. For arbitration before JAMS, the JAMS Comprehensive Arbitration Rules & Procedures and the JAMS Recommended Arbitration Discovery Protocols for Domestic, Commercial Cases will apply. The JAMS rules are available at www.jamsadr.com or by calling 1‑800‑352‑5267. This Provision governs in the event it conflicts with the applicable arbitration rules. Under no circumstances will class action procedures or rules apply to the arbitration.
Because the Services and these Terms concern interstate commerce, the Federal Arbitration Act (“FAA”) governs the arbitrability of all Disputes. However, the arbitrator will apply applicable substantive law consistent with the FAA and the applicable statute of limitations or condition precedent to suit.
Arbitration Award – The arbitrator may award on an individual basis any relief that would be available pursuant to applicable law, and will not have the power to award relief to, against or for the benefit of any person who is not a party to the proceeding. The arbitrator will make any award in writing but need not provide a statement of reasons unless requested by a party. Such award will be final and binding on the parties, except for any right of appeal provided by the FAA, and may be entered in any court having jurisdiction over the parties for purposes of enforcement.
Location of Arbitration – You or SoftThinks may initiate arbitration in either Santa Clara County, California or the federal judicial district that includes your billing address. In the event that you select the federal judicial district that includes your billing address, SoftThinks may transfer the arbitration to Santa Clara County, California in the event that it agrees to pay any additional fees or costs you incur as a result of the transfer, as determined by the arbitrator.
Payment of Arbitration Fees and Costs – SoftThinks will pay all arbitration filing fees and arbitrator’s costs and expenses upon your written request given prior to the commencement of the arbitration. You are responsible for all additional fees and costs that you incur in the arbitration, including, but not limited to, attorneys or expert witnesses. Fees and costs may be awarded as provided pursuant to applicable law. In addition to any rights to recover fees and costs under applicable law, if you provide notice and negotiate in good faith with SoftThinks as provided in the section above titled “Pre-Arbitration Claim Resolution” and the arbitrator concludes that you are the prevailing party in the arbitration, you will be entitled to recover reasonable attorney’s fees and costs as determined by the arbitrator.
Class Action Waiver
Except as otherwise provided in this Provision, the arbitrator may not consolidate more than one person’s claims, and may not otherwise preside over any form of a class or representative proceeding or claims (such as a class action, consolidated action or private attorney general action) unless both you and SoftThinks specifically agree to do so following initiation of the arbitration. If you choose to pursue your Dispute in court by opting out of the Arbitration Provision, as specified above, this Class Action Waiver will not apply to you. Neither you, nor any other user of SBAR can be a class representative, class member, or otherwise participate in a class, consolidated, or representative proceeding without having complied with the opt-out requirements above.
Severability
If any clause within this Provision (other than the Class Action Waiver clause above) is found to be illegal or unenforceable, that clause will be severed from this Provision, and the remainder of this Provision will be given full force and effect. If the Class Action Waiver clause is found to be illegal or unenforceable, this entire Provision will be unenforceable and the Dispute will be decided by a court.
Continuation
This Provision shall survive the termination of your subscription to SoftThinks service. Notwithstanding any provision in this Agreement to the contrary, we agree that if SoftThinks makes any change to this Provision (other than a change to the Notice Address), you may reject any such change and require SoftThinks to adhere to the language in this Provision if a dispute between us arises.
13.1 Notices. SoftThinks may give notice to Customer by means of a general notice through SBAR interface, electronic mail to Customer’s e-mail address on record with SoftThinks, or by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service to Customer’s address on record with SoftThinks. Customer may give notice to SoftThinks by written communication sent by first class postage prepaid mail or nationally recognized overnight delivery service addressed to SoftThinks, Attention : Legal. Notice shall be deemed to have been given upon receipt or, if earlier, two (2) business days after mailing, as applicable. All communications and notices to be made or given pursuant to these Terms shall be in the English language.
13.2 Governing Law. These Terms and the rights and obligations of the parties to and under this agreement shall be governed by and construed under the laws of the United States and the State of California as applied to agreements entered into and to be performed in such State without giving effect to conflicts of laws rules or principles. The parties agree that the United Nations Convention on Contracts for the International Sale of Goods is specifically excluded from application to these Terms. Any disputes arising out of or in connection with these Terms, including but not limited to any question regarding its existence, interpretation, validity, performance or termination, or any dispute between the parties arising from the parties’ relationship created by these Terms, shall be heard in the state and federal courts located in Santa Clara County, State of California and the parties hereby consent to exclusive jurisdiction and venue in such courts.
13.3 Publicity. SoftThinks has the right to reference and use Customer’s name and trademarks and disclose the nature of the Services provided hereunder in each case in SoftThinks business development and marketing efforts, including without limitation SoftThinks’ web site.
13.4 U.S. Government Customers. If Customer is a Federal Government entity, SoftThinks provides SBAR, including related software and technology, for ultimate Federal Government end use solely in accordance with the following: Government technical data rights include only those rights customarily provided to the public with a commercial item or process and Government software rights related to SBAR include only those rights customarily provided to the public, as defined in these Terms. The technical data rights and customary commercial software license is provided in accordance with FAR 12.211 (Technical Data) and FAR 12.212 (Software) and, for Department of Defense transactions, DFAR 252.227-7015 (Technical Data – Commercial Items) and DFAR 227.7202-3 (Rights in Commercial Computer Software or Computer Software Documentation). If greater rights are needed, a mutually acceptable written addendum specifically conveying such rights must be included in these Terms.
13.5 Export. SBAR utilizes software and technology that may be subject to United States and foreign export controls. Customer acknowledges and agrees that the Services shall not be used, and none of the underlying information, software, or technology may be transferred or otherwise exported or re-exported to countries as to which the United States maintains an embargo (collectively, “Embargoed Countries”), or to or by a national or resident thereof, or any person or entity on the U.S. Department of Treasury’s List of Specially Designated Nationals or the U.S. Department of Commerce’s Table of Denial Orders (collectively, “Designated Nationals”). The lists of Embargoed Countries and Designated Nationals are subject to change without notice. By using SBAR, Customer represents and warrants that it is not located in, under the control of, or a national or resident of an Embargoed Country or Designated National. SBAR may use encryption technology that is subject to licensing requirements under the U.S. Export Administration Regulations, 15 C.F.R. Parts 730-774 and Council Regulation (EC) No. 1334/2000. Customer agrees to comply strictly with all applicable export laws and assume sole responsibility for obtaining licenses to export or re-export as may be required. SoftThinks and its licensors make no representation that SBAR is appropriate or available for use in other locations. Any diversion of the Customer Data contrary to law is prohibited. None of the Customer Data, nor any information acquired through the use of SBAR, is or will be used for nuclear activities, chemical or biological weapons, or missile projects.
13.6 General. Customer shall not assign its rights hereunder, or delegate the performance of any of its duties or obligations hereunder, whether by merger, acquisition, sale of assets, operation of law, or otherwise, without the prior written consent of SoftThinks. Any purported assignment in violation of the preceding sentence is null and void. Subject to the foregoing, this Agreement shall be binding upon, and inure to the benefit of, the successors and assigns of the parties thereto. Except as otherwise specified in these Terms, these Terms may be amended or supplemented only by a writing that refers explicitly to these Terms and that is signed on behalf of both parties. No waiver will be implied from conduct or failure to enforce rights. No waiver will be effective unless in a writing signed on behalf of the party against whom the waiver is asserted. If any of these Terms is found invalid or unenforceable that term will be enforced to the maximum extent permitted by law and the remainder of the Terms will remain in full force. The parties are independent contractors and nothing contained herein shall be construed as creating an agency, partnership, or other form of joint enterprise between the parties. These Terms, in conjunction with the “End User License Agreement”, constitutes the entire agreement between the parties relating to this subject matter and supersedes all prior or simultaneous understandings, representations, discussions, negotiations, and agreements, whether written or oral. Except for your payment obligations hereunder, neither party shall be liable to the other party or any third party for failure or delay in performing its obligations under these Terms when such failure or delay is due to any cause beyond the control of the party concerned, including, without limitation, acts of God, governmental orders or restrictions, fire, or flood, provided that upon cessation of such events such party shall thereupon promptly perform or complete the performance of its obligations hereunder.