1. Vault America reserves the right, in its sole discretion, to limit Customer bandwidth utilization. Customer acknowledges that the trial of Vault America Service may be implemented within a test, lab or demonstration data vault. The Vault America test, lab or demonstration data vaults are for Customer and Vault America testing purposes only. Without limiting any other provision set forth herein, Vault America shall have no liability should there be any delay in the provision of the Service or any problem with data restoration due to changes in the test, lab or demonstration data vault infrastructure or for any other reason.
2. Customer will be responsible for securely storing, managing and deploying when required any encryption key or password which are generated to protect Customer data. If Customer loses the encryption keys or passwords, Vault America is unable to assist in data restoration.
3. Customer will not, and will not permit any third party, to (a) distribute or allow others to distribute copies of the Software or any part thereof to any third party, (b) tamper with, remove, reproduce, modify or copy the Software or any part thereof, (c) provide, rent, sell, lease, license, sublicense or otherwise transfer the Software or any copy or part thereof or use it for the benefit of a third party, or (d) reverse assemble, reverse compile or reverse engineer the Software or any part thereof, or otherwise attempt to discover any Software source code or underlying proprietary information except as may be permitted by law and which rights cannot be excluded. Customer shall comply will all terms of the End User License Agreement relating to the Vault America Software. The provisions of this Section shall survive any termination of the Agreement.
4. Customer is responsible for verification of the accuracy of the data that resides with Vault America under the Customer CS-Client and that the service is accurately installed and the appropriate data is sent offsite. Customer acknowledges that these terms of service do not constitute an order. Vault America is not obligated to provide Service to Customer based upon these terms of service.
5. Customer requests to delete data or accounts must be provided in writing to Vault America. Vault America shall have no obligation to comply with any requests for deletion which are not in writing.
6. In the event that Customer is in breach of the Agreement, Vault America shall, without prejudice to its other rights, have the right to terminate the Agreement and remove Customer data from the Vault America data vault forthwith and without liability on its part.
7. Upon the termination of the Agreement, without prejudice to any other rights Vault America may have, Customer shall: (a) within fifteen (15) days of the date of termination, deliver up to Vault America and Vault America’s option, forthwith remove and/or destroy all components of the Service, the Technology, any Confidential Information of Vault America and any materials bearing Vault America’s trade-marks from any storage media or hard copies remaining in Customer’s control or possession; (b) provide an officer’s certificate attesting to such delivery, erasure and/or destruction as is reasonably satisfactory to Vault America and (c) remit to Vault America all such costs and fees owing to Vault America including those related to the permanent or temporary winding down of any services provided by Vault America.
8. Except as expressly provided herein, all warranties, conditions, representations, indemnities and guarantees with respect to the Service and Vault America Technology, whether express or implied, arising by law, custom, prior oral or written statements (including, but not limited to any warranty of merchantability, satisfaction, fitness for particular purpose, title and non-infringement) are hereby overridden, excluded and disclaimed. Under no circumstances will Vault America be liable for any consequential, indirect, special, punitive or incidental damages or lost profits, whether foreseeable or unforeseeable (including, but not limited to, claims for or related to loss or corruption of data, inability to restore data due to the loss of Customer’s encryption keys, Vault America’s access of Customer’s computer system through the Total Support product or otherwise, goodwill, use of money or use of the products, late delivery, interruption in use or availability of data, stoppage of other work or impairment of other assets), arising out of breach or failure of express or implied warranty, breach of contract, misrepresentation, negligence, strict liability in tort or otherwise. Under no circumstances will Vault America be liable for data sent or purportedly sent to the data vault by Customer. Customer will be responsible for maintaining its own data backup pursuant to this Agreement. Customer acknowledges that this Agreement is for a “trial” only and Vault America’s entire liability for damages, under any legal theory or basis, shall not exceed $1.00. The limitations, exclusions and disclaimers set forth in this section will not apply only if and to the extent that a court of competent jurisdiction requires liability under applicable law beyond and despite these limitations, exclusions and disclaimers. Customer acknowledges that (i) the absence of charges by Vault America’s under this Agreement are based on the limited warranty, disclaimer and limitation of liability specified in herein and (ii) there would be substantial charges if any of these provisions were unenforceable. The provisions of this Section shall survive any termination of the Agreement.
9. Customer acknowledges and agrees that all proprietary right, title and interest in and to the Vault America Technology and the Software including all intellectual property rights therein, are owned by Vault America and its licensors, respectively.
10. Customer acknowledges and agrees that the Term of this agreement shall be 30 calendar days. During the term of the Agreement Vault America grants Customer a non-exclusive, non-transferable limited license to use the Software solely for the purpose of using the Service and for no other purpose. Upon the expiration of the Term, Vault America shall have the absolute right, which right may be exercised without providing any notice to Customer, to delete the Customer data from the Vault America data vault without liability.
11. Customer agrees that the amount of data that will be stored on the Vault America data vault shall not exceed ten (10) gigabytes (GB).
12. Customer acknowledges and agrees that: (i) it is expressly prohibited from translating, adapting, modifying, decompiling, reverse engineering, creating derivative works from, disassembling, unlocking, copying or recreating any component of the Vault America Technology under the terms of this Agreement or the End-User License Agreement; (ii) Vault America, respectively, shall have all right, title, interest in and to all copies, derivative works, translations, adaptations or modifications of the Vault America Technology howsoever made by Customer; and (iii) any proceeds derived from the activities described above, whether or not made by Customer in compliance with this Agreement or the End-User License Agreement, shall accrue to Vault America as appropriate.
13. Vault America shall have no liability to Customer or Customer’s employees, agents, customers or any other person under or in connection with the Service during the Trial Term.
14. Customer shall indemnify, defend and hold Vault America as required, on demand harmless from and against any and all reasonable costs, expenses (including, without limitation, attorney’s fees), liabilities, losses, damages, claims, demands and judgments derived from or in connection with the Service or Customer’s breach of this Agreement.
15. Vault America does not make any independent representations or warranties for products or services provided by third parties.
16. Notwithstanding any other provision of the Agreement, in no circumstance shall Vault America be liable to Customer under or in connection with the Agreement or otherwise for any loss or corruption of data (whether temporary or permanent).
17. Vault America shall not be liable for any breach of the Agreement caused by matters beyond Vault America’ reasonable control, including, without limitation, Acts of God, fire, lightning, explosion, war, terrorism, interruption in Internet connectivity or electrical service, disorder, flood, industrial disputes (whether or not involving Vault America’ employees), weather or acts of governmental bodies or other authorities or regulatory bodies.
18. State law issues concerning the construction, interpretation and performance of these terms and conditions shall be governed by the substantive laws of the Commonwealth of Massachusetts, excluding its choice of law rules. Any disputes regarding this Agreement shall be resolved in the state or federal courts located in the Commonwealth of Massachusetts and the arties hereby irrevocably submit to the exclusive jurisdiction of such courts. The provisions of this Agreement are severable. If any provision is held to be invalid or unenforceable, it shall not affect the validity or enforceability of any other provision. This Agreement may only be amended in a writing signed by the parties hereto. Any notice to be made by Customer to Vault America shall be in writing and delivered to Vault America at its offices by hand delivery, facsimile, overnight delivery service or US Mail, return receipt requested. Vault America shall have no obligation with respect to any other form of notice including oral or e-mail notices.