This Terms of Service agreement is entered into by SOS Online Backup and the person or entity agreeing to these terms (“You” or “Your”) and consists of the terms contained herein, the Additional Terms (as defined below), and all applicable Orders (as defined below) (collectively, this “Agreement”). This Agreement governs Your use of the Service Offerings (as defined below).
BY ENTERING AN ORDER, CLICKING THE “I ACCEPT” OR “AGREE” BUTTON, USING SOS ONLINE BACKUP SERVICE OR OTHERWISE INDICATING YOUR ACCEPTANCE OF THIS AGREEMENT, YOU EXPRESSLY ACKNOWLEDGE AND AGREE THAT YOU HAVE READ AND UNDERSTAND THIS AGREEMENT, YOU AGREE TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND ARE BOUND BY THIS AGREEMENT. IF YOU ARE AN INDIVIDUAL ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT AND WARRANT THAT YOU HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, AND IN SUCH EVENT, “YOU” AND “YOUR” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY. IF YOU DO NOT HAVE FULL LEGAL AUTHORITY TO BIND SUCH ENTITY OR DO NOT ACCEPT ALL THE TERMS AND CONDITIONS OF THIS AGREEMENT, DO NOT EXECUTE AN SOS ORDER, CREATE AN ACCOUNT, USE THE SOS ONLINE BACKUP SERVICE, OR OTHERWISE INDICATE YOUR ACCEPTANCE OF THIS AGREEMENT.
IMPORTANT NOTICE: THIS AGREEMENT CONTAINS A BINDING ARBITRATION PROVISION AND WAIVER OF JURY TRIALS AND CLASS ACTIONS GOVERNING DISPUTES ARISING FROM USE OF THE SERVICE OFFERINGS. IT AFFECTS YOUR AND YOUR USERS’ LEGAL RIGHTS AS DETAILED IN THE MANDATORY ARBITRATION AND WAIVER OF CLASS ACTION SECTION BELOW. PLEASE READ CAREFULLY.
1.1 “Account Information” means information about You and Users that You provide to SOS Online Backup in connection with the creation or administration of Your Account, and may include names, usernames, phone numbers, email addresses and billing information associated with Your Account.
1.3 “Brand Features” means the trade names, trademarks, service marks, logos, domain names, and other distinctive brand features of SOS Online Backup.
1.4 “Content” means software, data, text, files, audio, video, or images.
1.5 “Documentation” means Service support material, if any, made available by or on behalf of SOS Online Backup, which may include product guides, manuals, specifications, and knowledgebase articles, each as may be updated from time to time.
1.6 “Fees” means applicable fees for the Service as set forth in an Order or, if an Order is not executed or the fees are not set forth in the Order, as set forth in SOS Online Backup’s then-current price list.
1.7 “Login Credentials” means usernames, passwords, authentication keys and security credentials that enable access, use and management of the Service.
1.8 “Order” means any (a) ordering document or online submission form prepared by SOS Online Backup and executed or otherwise agreed to by You, (b) auto-renewal, or (c) online request for access to the Service submitted to SOS Online Backup directly or via the website at sosonlinebackup.com (the “Site”).
1.9 “Payment Method” means a valid payment method supported by SOS Online Backup.
1.10 “Service” means the SOS Online Backup service made available by or on behalf of SOS Online Backup.
1.11 “Service Offerings” means the Service, SOS Content, Brand Features, and any other product or service provided by or on behalf of SOS Online Backup under this Agreement with the exception of any Third-Party Product.
1.12 “SOS Content” means Content made available by or on behalf of SOS Online Backup in connection with the Service or on the Site to allow access and use of the Service, including without limitation APIs, Documentation, software libraries, templates, and other related technology.
1.13 “SOS Online Backup” means Infrascale, Inc.
1.14 “Subscription Term” means the term of a Service subscription identified in an Order, including all renewals.
1.15 “Third-Party Product” means any Content made available to You by any third party on the Site or in conjunction with the Service, including any third party-branded software, hardware, or services. SOS Online Backup reserves the right to suspend or terminate any Third-Party Product at any time.
1.16 “User” means any individual or entity authorized by You or on Your behalf to access or use Your Content or the Service Offerings under Your Account.
1.17 “Your Content” means all Content that You or any User (or SOS Online Backup, when acting on Your instructions) transfers to SOS Online Backup for processing, storage or hosting by the Service in connection with Your Account. Your Content does not include Account Information.
Your Rights; General Terms.
2.1 Trial. If a Service offer is identified as a trial (a “Trial”), then except as otherwise expressly agreed upon by SOS Online Backup in writing, You and Users may use such Service (the “Trial Service”) solely for internal demonstration, test, and evaluation purposes for a period of fifteen (15) days (the “Trial Period”), commencing on the date SOS Online Backup first provides You with access to the Trial Service. Notwithstanding any other provision of this Agreement, SOS Online Backup provides the Trial Service “AS IS” without support, indemnification, or warranty of any kind. The Trial Service may be suspended or terminated at any time by SOS Online Backup in its sole discretion with or without notice to You. Upon expiration of the Trial Period, Your and all Users’ access to the Trial Service and to Your Content uploaded therein will terminate. ALL OF YOUR CONTENT UPLOADED IN CONNECTION WITH A TRIAL WILL BE PERMANENTLY LOST UNLESS YOU PURCHASE A SUBSCRIPTION TO THE SAME SERVICE AS THAT COVERED BY THE TRIAL OR YOU EXPORT SUCH DATA PRIOR TO EXPIRATION OF THE TRIAL PERIOD. These terms supersede any conflicting terms and conditions in this Agreement.
2.2 Access and Use. For the duration of the Subscription Term and except as otherwise set forth in this Agreement or Your Order, You have the non-exclusive, non-assignable, royalty free, worldwide limited right to access and use the Service Offerings in accordance with Your subscription plan then in effect, solely for Your personal use and subject to the terms of this Agreement. You may allow Users to use the Service Offerings solely for this purpose and subject to the terms of Section 3.2 below.
2.3 Scope; Ownership. You do not acquire under this Agreement any right or license to use the Service Offerings beyond the scope and duration of the Service stated in Your Order. Except as expressly set forth herein, You obtain no rights under this Agreement to the Service Offerings, including any related intellectual property rights. As between You and SOS Online Backup, we own all right, title, and interest in and to the Service Offerings, including all improvements, enhancements, modifications, and derivative works thereof, and all intellectual property rights in them. This includes any information we collect and analyze about Your and Users’ use of the Service Offerings. Your rights to access and use the Service Offerings are limited to those expressly granted in the Agreement. No other rights are implied with respect to the Service Offerings or any related intellectual property rights. Upon the end of the Subscription Term, Your and all Users’ right to access and use the Service Offerings will terminate.
2.4 Security. SOS Online Backup will implement reasonable and appropriate measures designed to help You secure Your Content against accidental or unlawful loss, access, or disclosure.
3.1 Account. You will ensure that all Account Information You provide to SOS Online Backup is accurate, complete, and up to date at all times.
3.2 Users. You are responsible for providing any necessary notices to Users, identifying and authenticating Users, obtaining any legally-required consents from Users concerning their use of the Service Offerings, approving Users’ access to the Service Offerings, taking reasonable measures to prevent unauthorized access by others, and maintaining the security of Your and Users’ Login Credentials. You will ensure that all Users comply with all terms and conditions of this Agreement and that the terms of Your agreement with each User are consistent with this Agreement. You are responsible for Users’ use of Your Content and the Service Offerings and are liable for Users’ acts and omissions. You will be deemed to have taken any action that You permit, assist, or facilitate any person or entity to take related to this Agreement, Your Content, or use of the Service Offerings. Except to the extent caused by SOS Online Backup’s breach of this Agreement, (a) You are responsible for all activities that occur under Your and Users’ Login Credentials, regardless of whether authorized by You or undertaken by You, Your employees or a third party (including Users), and (b) SOS Online Backup, its affiliates, suppliers and licensors (collectively, the “SOS Parties”) are not responsible for unauthorized access to Your Account. If You become aware of any violation by any User, You will immediately suspend that User’s access to Your Content and the Service Offerings. Further, You agree to notify SOS Online Backup immediately of any unauthorized access or use of Your Account of which You become aware by contacting Customer Support via chat, phone, or email directed to firstname.lastname@example.org.
3.4 Restricted Activities. You agree not to, and not to allow Users to use the Service: (a) to do anything threatening, abusive, harmful, harassing, defamatory, tortious, or invasive of another person’s privacy; (b) contrary to our policies or in violation of any laws, regulations, ordinances, or directives; (c) to store or host files (i) in support of malware, phishing, spam, and similar activities, or (ii) that are illegal, harmful, fraudulent, infringing or offensive; (d) for any unlawful, invasive, infringing, defamatory or fraudulent purpose; (e) to intentionally distribute viruses, worms, Trojan horses, corrupted files, hoaxes, or other items of a destructive or deceptive nature; (f) to disable, interfere with, or circumvent the proper functioning of the Service or any software, hardware, or equipment on the Service; (g) to engage in any conduct that inhibits anyone else’s use or enjoyment of the Service, or which we determine may harm the Service or our users; and (h) to monitor or copy any material on the Service or on the network, either manually or through automated means (i.e., scraping or crawling), without SOS Online Backup’s prior written consent.
3.5 Representations and Warranties. You represent and warrant that (a) You have full capacity, right and authority to enter into this Agreement, (b) You will use the Service Offerings solely for lawful purposes, (c) You will comply with all applicable laws in Your performance of this Agreement and in Your and Users’ use of the Service Offerings, (d) Your and all Users’ access to and collection, use, storage and disclosure of Your Content will comply with all applicable laws, and (d) Your entry into this Agreement and performance of Your obligations do not breach any of Your obligations to any third party, or breach any contract, agreement or order by which You are bound.
Ordering and Payment Terms.
4.1 Purchases. You may purchase the right to access and use the Service Offerings by entering into an Order with SOS Online Backup. By ordering or renewing a subscription, You agree to the applicable Fees and terms for that subscription. A subscription to the Service Offerings includes the right to access applicable Support during the Subscription Term.
4.2 Subscription Plan; Fees. You may change Your subscription plan at any time. You will continue to have access to the Service features provided under Your current subscription plan until the next billing cycle, and the new subscription plan will be effective at the start of Your next billing cycle. SOS Online Backup reserves the right to modify, terminate, or otherwise amend the terms of Your subscription, including the Fees, from time to time in its sole discretion. If we modify the Fees, we will notify You by email in advance of the effective date of such change (“Fee Increase Date”). If the change in Fees is not acceptable, Your sole and exclusive remedy shall be to stop using the Service and cancel Your subscription prior to the Fee Increase Date. By continuing to access the Service or maintain an Account after the Fee Increase Date, You accept all changes in Fees.
4.3 Payment. Fees are due in advance and will be charged to Your Payment Method or paid by You at the start of Your subscription to the Service and on each monthly anniversary of the start date. You authorize SOS Online Backup to charge Your Payment Method, including on a recurring basis, for all Fees as they become payable, plus any applicable taxes (“Authorization”). You agree that You are responsible for the full amount of applicable Fees for each billing cycle in which You or any User uses the Service or maintains a subscription, even if You or Users don’t use the Service during the billing cycle or use the Service for only a portion of the billing cycle. The Authorization continues in effect until SOS Online Backup or You cancel the Service in accordance with the terms of this Agreement, and any and all outstanding Fees have been paid in full. Unless otherwise indicated, all Fees and other charges are in U.S. dollars, and all payments shall be in U.S. currency. All Fees are non-refundable (except as required by law in the EEA and Turkey).
You agree to reimburse SOS Online Backup for any sales, use, and similar taxes arising from the provision of the Service that any federal, state, or local governments may impose. SOS Online Backup may store and continue billing Your Payment Method even if it has expired to avoid interruptions in Service provided to You. If SOS Online Backup is unable to charge Your Payment Method for any reason (such as expiration or insufficient funds), You must pay the amount due immediately upon demand, plus any applicable processing fees, bank fees, or charges for returned items, plus interest at the lesser of 1.5% per month or the maximum rate permitted by law, calculated from the date the amount was due until the date that payment is received, plus attorneys’ fees and other costs of collection as permitted by law. You acknowledge and agree that the Fees You pay SOS Online Backup are for access to and use of the Service Offerings.
4.4 Delinquent Payments. If any payment is more than thirty (30) days past due (including if payment is late due to a credit card chargeback or insufficient funds), SOS Online Backup may, without limiting any remedies available to it hereunder (a) suspend all or part of Your and Users’ access to and use of the Service Offerings until payment is made current, or (b) immediately terminate this Agreement and/or any specific Order(s) for breach. SOS Online Backup may charge You interest at the rate of 1.5% per month (or the highest rate permitted by law, if less) on all late payments. You are responsible for any and all costs of collection incurred by SOS Online Backup in collecting such late or past due payments, including reasonable attorney’s fees and litigation costs.
5.1 Generally. SOS Online Backup may suspend Your or any User’s right to access or use all or any portion of the Service Offerings if SOS Online Backup determines:
(a) Your or any User’s use of the Service Offerings (i) poses a security risk to the Service Offerings or any third party, (ii) could adversely impact SOS Online Backup systems, the Service Offerings or the systems or Content of any other SOS Online Backup customer, (iii) could subject the SOS Parties or any third party to liability, or (iv) could be fraudulent;
(b) You or any User is in breach of this Agreement or other applicable terms;
(c) It is required to suspend to comply with applicable law;
(d) You have ceased to operate in the ordinary course, made an assignment for the benefit of creditors or similar disposition of Your assets, or become the subject of any bankruptcy, reorganization, liquidation, dissolution, or similar proceeding; or
(e) SOS Online Backup wishes to suspend a Trial Service pursuant to Section 2.1.
SOS Online Backup will eliminate any such suspension once the circumstances giving rise to the suspension have been resolved.
5.2 Effect of Suspension. If SOS Online Backup suspends Your or any User’s right to access or use all or any portion of the Service Offerings, You remain responsible for all Fees and charges You incur during the period of suspension.
6.1 Term. This Agreement and Your subscription to the Service Offerings will become effective upon the earlier of (a) Your execution of an Order, (b) Your or any Users’ use of the Service, or (c) when You indicate Your acceptance of this Agreement (during Account creation or otherwise). Except as otherwise agreed in writing by SOS Online Backup, Your subscription will continue for a one (1) month period and will automatically renew on a recurring basis for successive one (1) month periods unless and until You cancel Your subscription, or Your Account is otherwise terminated pursuant to this Agreement. You must cancel Your subscription at least fifteen (15) days prior to the next billing cycle to avoid being charged Fees for the next billing cycle.
6.2 Cancellation. You or SOS Online Backup may cancel Your subscription to the Service Offerings at any time. If You would like to cancel, visit Your Account Dashboard and follow the instructions for cancellation. If You cancel less than fifteen (15) days prior to the next billing cycle, You will be charged the full Fees for the next billing cycle. Cancellation will be effective (the “Service Cancellation Date”) forty-five (45) days from the date You or SOS Online Backup cancels Your subscription. You and Users will continue to have access to the Service Offerings through the Service Cancellation Date. You are advised to retrieve Your Content prior to the Service Cancellation Date as it will not be available for retrieval after such date. SOS Online Backup is not responsible for the availability or accessibility of Your Content following the Service Cancellation Date. Your payments are non-refundable and no refunds or credits will be provided for partially used periods (except as required by law in the EEA and Turkey, in which event please send an email to email@example.com).
6.3 Termination for Cause. SOS Online Backup may cancel Your subscription and terminate this Agreement immediately for cause (i) if SOS Online Backup has the right to suspend under Section 5.1, (ii) if SOS Online Backup’s relationship with a third-party partner who provides software or other technology SOS Online Backup uses to provide the Service Offerings expires, terminates or requires SOS Online Backup to change the way it provides the software or other technology as part of the Service Offerings, or (iii) in order to comply with applicable law or requests of governmental entities. The “Service Cancellation Date” shall be as specified by SOS Online Backup.
6.4 Effect of Cancellation/Termination.
(a) Responsibilities. Upon the Service Cancellation Date:
(i) the Subscription Term shall end and all of Your and Users’ rights to the Service Offerings shall immediately terminate;
(ii) Your and all Users’ access to Your Content will be revoked;
(iii) You will remain responsible for all Fees and charges You have incurred under this Agreement through the end of the applicable billing cycle;
(iv) You will immediately return or, if instructed by SOS Online Backup, destroy all SOS Content in Your possession and cause all Users to do the same; and
(v) the following Sections shall survive termination: Sections 1, 3.2, 3.3, 3.4, 4.3, 4.4, 5.2, 6.4 and 7 through 10.
(b) Miscellaneous. For clarity, termination of this Agreement also results in cancellation of Your subscription, and cancellation of Your subscription results in termination of this Agreement. Termination of this Agreement will not release You from the obligation to make payment of all amounts accrued or due and payable to SOS Online Backup prior to the Service Cancellation Date.
EXCEPT AS EXPRESSLY SET FORTH IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW (A) THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS ARE PROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER, (B) THE SOS PARTIES DO NOT MAKE ANY OTHER WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT, (C) THE SOS PARTIES ARE NOT RESPONSIBLE OR LIABLE FOR THE DELETION OF OR FAILURE TO STORE ANY CONTENT, DATA AND OTHER COMMUNICATIONS MAINTAINED OR TRANSMITTED THROUGH USE OF THE SERVICE, (D) YOU AND USERS ARE SOLELY RESPONSIBLE FOR SECURING AND BACKING UP YOUR CONTENT, AND (E) THE SOS PARTIES DO NOT WARRANT THAT THE OPERATION OF THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS WILL BE UNINTERRUPTED, SECURE, ERROR-FREE, OR FREE OF HARMFUL COMPONENTS OR THAT THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS ARE SUITABLE FOR COMPLIANCE WITH DOCUMENT RETENTION OR OTHER LEGAL REQUIREMENTS. IN NO EVENT WILL THE SOS PARTIES, OR ANY OF THEM, BE LIABLE FOR ANY LOSS, LIABILITY, DAMAGES OR CLAIMS RELATED TO ANY REGULATORY OBLIGATIONS YOU OR ANY USER MAY HAVE RELATED TO YOUR CONTENT. YOU ACKNOWLEDGE THAT THE SOS PARTIES DO NOT CONTROL THE TRANSFER OF DATA OVER COMMUNICATIONS FACILITIES, INCLUDING THE INTERNET, AND THAT THE SERVICE OFFERINGS AND THIRD-PARTY PRODUCTS MAY BE SUBJECT TO LIMITATIONS, DELAYS AND OTHER PROBLEMS INHERENT IN THE USE OF SUCH COMMUNICATIONS FACILITIES. THE SOS PARTIES ARE NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS.
Limitation of Liability.
TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE SOS PARTIES WILL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES (INCLUDING DAMAGES FOR LOSS OF PROFITS, REVENUES, USE, OR DATA) ARISING OUT OF OR RELATING TO THIS AGREEMENT OR ANY SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS FURNISHED OR TO BE FURNISHED UNDER THIS AGREEMENT OR THE USE THEREOF, EVEN IF A PARTY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND EVEN IF DIRECT DAMAGES DO NOT SATISFY A REMEDY. FURTHER, THE SOS PARTIES WILL NOT BE RESPONSIBLE FOR ANY COMPENSATION, REIMBURSEMENT, OR DAMAGES ARISING IN CONNECTION WITH: (A) YOUR OR ANY USERS’ INABILITY TO USE THE SERVICE OFFERINGS OR THIRD-PARTY PRODUCTS, INCLUDING AS A RESULT OF ANY (I) TERMINATION OR SUSPENSION OF THIS AGREEMENT OR AN ORDER, (II) SOS ONLINE BACKUP’S DISCONTINUATION OF ANY OR ALL OF THE SERVICE OFFERINGS, OR, (III) ANY UNANTICIPATED OR UNSCHEDULED DOWNTIME OF ALL OR A PORTION OF THE SERVICE OFFERINGS FOR ANY REASON, (B) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, (C) ANY UNAUTHORIZED ACCESS TO, ALTERATION OF, OR THE DELETION, DESTRUCTION, DAMAGE, LOSS OR FAILURE TO STORE ANY OF YOUR CONTENT OR OTHER DATA. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, YOUR AND THE SOS PARTIES’ AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE AMOUNT YOU PAID SOS ONLINE BACKUP UNDER THIS AGREEMENT DURING THE THREE (3) MONTHS BEFORE THE LIABILITY AROSE. THESE LIMITATIONS OF LIABILITY DO NOT APPLY TO A VIOLATION OF A PARTY’S INTELLECTUAL PROPERTY RIGHTS BY THE OTHER PARTY, INDEMNIFICATION OBLIGATIONS OR YOUR PAYMENT OBLIGATIONS.
9.1 General. You will defend, indemnify, and hold harmless the SOS Parties and each of their respective employees, officers, directors, and representatives (collectively, the “SOS Indemnified Parties”) from and against any and all claims, damages, losses, liabilities, costs, and expenses (including reasonable attorneys’ fees) arising out of or relating to any third-party claim concerning (a) Your or any Users’ access or use of the Service Offerings (including any activities under Your Account and use by Your employees and personnel) in violation of this Agreement, (b) breach of this Agreement or violation of applicable law by You, Users or Your Content, (c) Your and Users’ acts or omissions, or (d) a dispute between You and any User. You will reimburse SOS Online Backup for reasonable attorneys’ fees, as well as its employees’ and contractors’ time and materials spent responding to any third-party subpoena or other compulsory legal order or process associated with third-party claims described in (a) through (d) above at our then-current rates.
9.2 Intellectual Property.
(a) You will defend and indemnify the SOS Indemnified Parties against any third-party claim alleging that any of Your Content infringes or misappropriates that third party’s intellectual property rights, and will pay the amount of any adverse final judgment or settlement.
(b) If the Service becomes, or in SOS Online Backup’s opinion may become, the subject of a third-party infringement or misappropriation claim, then SOS Online Backup may, at its sole option and expense (i) procure the right for You to continue using the Service, (ii) modify the Service to make it non-infringing without materially reducing its functionality, or (iii) replace the Service with a non-infringing, functionally equivalent alternative. If SOS Online Backup believes none of the foregoing remedies are commercially reasonable, then SOS Online Backup may suspend or terminate Your and all Users’ right to access and use the Service. In the event of termination under this Section, SOS Online Backup will refund any pre-paid Fees (less any discounts provided) for the Service pro-rated for the remaining Subscription Term.
(c) The remedies provided in this Section 9.2 are the sole and exclusive remedies for any third-party claims of infringement or misappropriation of intellectual property rights by the Service Offerings, the Brand Features or Your Content.
9.3 Third-Party Products. You acknowledge that SOS Online Backup is not responsible for the fulfillment of any Third-Party Product indemnities or for issues attributable to use of Third-Party Products.
10.1 Severability. If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then (a) such provision will be enforced to the maximum extent permissible so as to effectuate the original intent of the parties with respect to such provision, and (b) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect.
10.2 Rights and Remedies; Equitable Relief. The rights and remedies of the parties under this Agreement are cumulative and may be exercised singularly or concurrently. The parties acknowledge and agree that an actual or threatened breach of Your or any Users’ obligations related to SOS Online Backup’s intellectual property, may result in immediate, irreparable and continuing damage for which there may be no adequate remedy at law. Notwithstanding anything contained in this Agreement to the contrary, the non-breaching party may apply to any court of competent jurisdiction for equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond or any other surety or security.
(a) Generally. Notwithstanding any other provision in this Agreement, and except as otherwise set forth in this Section, if either You or SOS Online Backup has any dispute, controversy, or claim, whether founded in contract, tort, statutory, or common law, concerning, arising out of, or relating to this Agreement, the Platform, the Site or the Service, including any claim regarding the applicability, interpretation, enforceability, scope, validity or formation of this arbitration clause and/or this Agreement (each of the foregoing, a “Legal Claim”) that cannot be resolved directly between You and SOS Online Backup, then such Legal Claim will be settled by individual (not class or class-wide), confidential, binding arbitration administered by the American Arbitration Association (“AAA”) in accordance with the then-current Commercial Arbitration Rules of the AAA, including the Supplementary Procedures for Consumer-Related Disputes (collectively, the “AAA Rules”), including any expedited procedures. Notwithstanding the foregoing, You and SOS Online Backup each retain the right to bring an individual action in small claims court and the right to seek injunctive or other equitable relief in a court of competent jurisdiction to prevent the actual or threatened infringement, misappropriation or violation of a party’s copyrights, trademarks, trade secrets, patents or other intellectual property rights. This Section shall not preclude either party from seeking (i) equitable relief in accordance with Section 10.2; or (ii) relief from a small claims court for disputes or claims within the scope of such court’s jurisdiction.
(b) Process. To initiate an arbitration proceeding, an arbitration claim must be submitted by the claimant (the “Claimant”) to the AAA, and a written Demand for Arbitration must be provided to the other party (the “Opposing Party”), pursuant to the AAA Rules. Arbitration hearings will be held in Fairfax County, Virginia or any other location that is mutually agreed upon by You and SOS Online Backup. A single arbitrator will be mutually selected by You and SOS Online Backup and shall be (i) a practicing attorney licensed to practice law in Virginia or a retired judge; and (ii) selected from the arbitrators on the AAA’s roster of commercial dispute arbitrators who have a background in finance, technology, human resources, and/or online commerce law (or if there are no such arbitrators, then from the arbitrators on the AAA’s roster of commercial dispute arbitrators) (collectively, the “Arbitrator Requirements”). If You and SOS Online Backup cannot mutually agree upon an arbitrator within ten (10) days of the Opposing Party’s receipt of the Demand for Arbitration from the Claimant, then the AAA shall appoint a single arbitrator that satisfies the Arbitrator Requirements. The arbitrator will follow the law and will give effect to any applicable statutes of limitation. Payment of filing, administration and arbitrator fees will be governed by the AAA’s rules. SOS Online Backup will reimburse those fees for claims totaling less than $10,000 unless the arbitrator determines the claims are frivolous. We will not seek attorneys’ fees and costs in arbitration unless the arbitrator determines the claims are frivolous.
(c) Courts. If You opt out of the arbitration agreement (as provided below), or if the arbitration agreement is found to be unenforceable, or if You neither are a resident nor have a principal place of business in the United States or Canada, You agree to resolve any claim You have with SOS Online Backup exclusively in a state or federal court located in Fairfax County, Virginia.
(d) Timing. To the extent permitted by law, You agree to file any claim You may have against SOS Online Backup within one (1) year after such claim arose. Otherwise, Your claim is permanently barred.
(e) Class Action and Trial Waiver. You and SOS Online Backup agree and acknowledge that this Agreement evidences a transaction involving interstate commerce and that the Federal Arbitration Act (Title 9 of the United States Code) shall govern the interpretation, enforcement, and proceedings pursuant to the arbitration clause in this Agreement. YOU FURTHER ACKNOWLEDGE, UNDERSTAND, AND AGREE THAT YOU AND SOS ONLINE BACKUP ARE EACH WAIVING OUR RESPECTIVE RIGHTS TO A TRIAL BY JURY AS TO DISPUTES HEREUNDER AND THAT YOU ARE WAIVING YOUR RIGHT TO PARTICIPATE IN ANY CLASS ACTION PROCEEDING ARISING FROM THIS AGREEMENT.
(f) Opt Out. You may opt out of the agreement to arbitrate. If You do so, neither You nor SOS Online Backup can require the other to participate in an arbitration proceeding. To opt out, You must notify SOS Online Backup within ninety (90) days of the date that You first agreed to this Agreement. To opt out by mail, send Your written opt-out notice to the following address:
SOS Online Backup
Attn: Legal Department
12110 Sunset Hills Road, Suite 600
Reston, Virginia, 20190
Your written opt-out notice must include (1) Your name and residence address; (2) the email address associated with Your account; (3) a clear statement that You want to opt out of this arbitration agreement; (4) date sent, and (5) Your signature.
Alternatively, You can opt out online by sending an email with all of the above information to: firstname.lastname@example.org.
10.4 Governing Law. Except as otherwise expressly provided herein, all Claims shall be governed by and construed in accordance with the laws of the Commonwealth of Virginia, exclusive of conflict or choice of law rules. The United Nations Convention on Contracts for the International Sale of Goods does not apply to this Agreement. The courts in some countries will not apply U.S. law to some types of disputes. If You reside in one of those countries, then where U.S. law is excluded from applying, the laws of Your country of residence will apply.
10.5 Entire Agreement. This Agreement contains the entire understanding between the parties with respect to the subject matter hereof and supersedes all prior and contemporaneous communications, representations, warranties, proposals, negotiations, discussions, understandings or agreements (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. In entering into this Agreement, neither party has relied on, and neither party will have any right or remedy based on, any statement, representation or warranty, except those expressly set out in this Agreement. The terms located at any URL referenced in this Agreement and an Order are incorporated by reference into this Agreement. After this Agreement is effective, SOS Online Backup may provide an updated URL in place of any URL in this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Order(s), these Terms of Service, and the terms at any URL. Any additional or conflicting terms contained in any purchase order, proposal or other document provided by You shall be deemed rejected by SOS Online Backup without need of further notice of objection, even if such document is acknowledged or accepted by SOS Online Backup, and regardless of any statement to the contrary which may be contained therein, and shall be of no effect or in any way binding upon SOS Online Backup.
10.6 Modifications. SOS Online Backup may modify this Agreement at any time, in our sole discretion. If we make any material modifications to the Agreement, we shall inform You by posting the modified Agreement on the Site. It is Your responsibility to check the Site periodically for modifications to this Agreement. The modified Agreement will be effective upon Your next subscription renewal following posting of the updated terms. Your or any Users’ continued access or use of the Service Offerings after such renewal confirms Your consent to be bound by the Agreement, as amended. If You do not agree to be bound by the modified Agreement, then You and all Users may not continue to use the Service Offerings. Because the Service Offerings are evolving over time, SOS Online Backup may change or discontinue all or any part of the Service Offerings at any time and without notice, at its sole discretion.
10.7 Waiver. The failure by SOS Online Backup at any time to enforce any of the provisions of this Agreement or any right or remedy available hereunder or at law or in equity, or to exercise any option herein provided, will not constitute a waiver of such provision, right, remedy or option or in any way affect the validity of this Agreement. The waiver of any default by SOS Online Backup will not be deemed a continuing waiver but will apply solely to the instance to which such waiver is directed.
10.8 Headings. The section headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement.
10.9 No Agency. The parties hereto are independent contractors. This Agreement does not create any agency, partnership or joint venture between the parties. Neither party has any express or implied right or authority to assume or create any obligations on behalf of the other or to bind the other to any contract, agreement or undertaking with any third party.
10.10 Assignment. SOS Online Backup may assign its rights or delegate its obligations, or any part thereof under this Agreement without prior consent. You may not assign, whether in conjunction with a change of ownership, merger, acquisition, sale or transfer of all or any part of Your business or assets or otherwise, either voluntarily, by operation of law of otherwise, any portion of this Agreement without SOS Online Backup’s prior written consent. Any attempt by You to assign or delegate any rights, duties or obligations set forth in this Agreement without SOS Online Backup’s prior written consent shall be deemed a material breach of this Agreement and shall be null and void. Subject to the foregoing, the terms and conditions of this Agreement shall bind and enure to each party’s successors and assigns.
10.11 Third-Party Beneficiaries. SOS Online Backup shall be a third-party beneficiary of any contract between You and Users with respect to the Service Offerings, and shall be entitled to enforce the obligations therein. Other than as expressly provided herein, no third-party beneficiaries are intended or will be construed as created by this Agreement.
(a) To You. SOS Online Backup may provide any notice to You under this Agreement by (i) posting a notice on the SOS Online Backup Site or Dashboard, or (ii) sending a message to the email address then associated with Your Account. Notice that SOS Online Backup provides by posting on the SOS Online Backup Site or Dashboard will be effective upon posting and notice SOS Online Backup provides by email will be effective when the email is sent. It is Your responsibility to keep Your email address current. You will be deemed to have received any email sent to the email address then associated with Your Account when SOS Online Backup sends the email, whether or not You actually receive the email.
(b) To SOS Online Backup. To provide SOS Online Backup notice under this Agreement, You must do so via personal delivery, overnight courier or registered or certified mail to SOS Online Backup, 12110 Sunset Hills Road, Suite 600, Reston, Virginia, 20190, Attention: Legal Department. SOS Online Backup may update its address for notice by providing notice of such change pursuant to Section 10.12(a). Notice provided by personal delivery will be effective immediately. Notice provided by overnight courier will be effective one (1) business day after it is sent. Notice provided registered or certified mail will be effective three (3) business days after it is sent.
10.13 Force Majeure. SOS Online Backup will not be liable for any delay or failure to perform any obligations under this Agreement due to any cause beyond SOS Online Backup’s reasonable control, including without limitation acts of God, labor disputes or other industrial disturbances, electrical, telecommunications or other utility failures, earthquakes, storms or other causes of nature, global health pandemic, embargoes, riots or other civil disturbances, acts or orders of government, acts of terrorism or war. If such a force majeure event occurs and continues for a period of more than thirty (30) days, either party may terminate this Agreement upon written notice to the other party.
10.14 Questions. If You have any questions regarding this Agreement, please contact SOS Online Backup at email@example.com.
Last revised November 1, 2020.