Unitrends BCDR Link Terms of Service

Last Updated: March 2014

Welcome to Unitrend BCDR Link, service owned and operated by Unitrends, Inc. Please read these terms of service (these "Terms") carefully as they form a contract between you and Unitrends listed in Section 17 of these Terms ("Unitrends", "we", "us", or "our") that governs your access and use of: (i) the hosted BCDR Link storage solution provided by Unitrends for online storage, sharing and processing of files, materials, data, text, audio, video, images or other content (collectively, "Content"); (ii) the BCDR Link software provided or made available by Unitrends (the "Software"); (iii) the Unitrends BCDR Link websites or applications; and, (iv) any written or electronic use or features guides or other documentation provided or made available by Unitrends for the BCDR Link (the "User Guides") (collectively the "Service(s)").

By registering or using any of the BCDR Link Services you agree to be bound by these Terms. If you are using the Services on behalf of an organization, you are agreeing to these Terms for that organization and promising to Unitrends that you have the authority to bind that organization to these Terms (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Service. You may use the Services only in compliance with these Terms and only if you have the power to form a contract with Unitrends and are not barred under any applicable laws from doing so. IF YOU DO NOT AGREE TO BE BOUND BY THESE TERMS, YOU MUST NOT USE THE SERVICES. Should you have any questions concerning this Agreement, please contact [email protected].

Please note that Unitrends doesn't provide warranties for the Services. This contract also limits our liability to you. See Sections 14 and 16 for details.

1. CHANGES TO THESE TERMS

We reserve the right to revise these Terms from time to time. We will date and post the most current version of these Terms on the Unitrends BCDR Link website. Any changes will be effective upon posting the revised version of these Terms on the Service (or such later effective date as may be indicated at the top of the revised Terms). If in our sole discretion we deem a revision to these Terms to be material, we will notify you via the Service and/or by email to the email address associated with your account. Notice of other changes may be provided via the Unitends BCDR Link website (the "Site") or related Unitrends or BCDR Link blogs. Therefore, we encourage you to check the date of these Terms whenever you visit the Site to see if these Terms have been updated. Your continued access or use of any portion of the Service constitutes your acceptance of such changes. If you don't agree to any of the changes, we're not obligated to keep providing the Service, and you must cancel and stop using the Service.

2. ACCESS TO THE SERVICE

You may use the BCDR Link Service, on a non-exclusive basis, solely in strict compliance with these Terms and all applicable laws.

3. YOUR ACCOUNT

To obtain access to certain BCDR Link Services, you may be required to obtain an account with Unitrends (become a "Registered User"), by completing a registration form and designating a user ID and password. Until you apply for and are approved for a Unitrends BCDR Link account, your access to the Service will be limited to the areas of the Service, if any, that Unitrends makes available to the general public. When registering with Unitrends BCDR Link you must: (a) provide true, accurate, current and complete information about yourself as requested by the Service's registration form (such information being the "Registration Data") and (b) maintain and promptly update the Registration Data to keep it true, accurate, current and complete. Unitrends may withdraw such approval at any time in its sole discretion, with or without cause.

Only you may use your Unitrends BCDR Link account. You must keep your account and passwords confidential and not authorize any third party to access or use the Service on your behalf, unless we provide an approved mechanism for such use. You must contact us right away if you suspect misuse of your account or any security breach in the Service. You are responsible for all activities that take place with your account. Unitrends will not be liable for any loss or damage arising from any unauthorized use of your accounts.

If a third party such as an employer, gave you your account, that party has rights to your account and may: manage your account, reset your password, or suspend or cancel your account; view your account's usage and profile data, including how and when your account is used; and read or store Content in your account. If you are an individual Registered User of the Service, and the domain of the primary email address associated with your account is owned by an organization and was assigned to you as an employee, contractor or member of such organization, and that organization wishes to establishes a commercial relationship with us and add your account to such relationship, then, if you do not change the email address associated with your account, your account may become subject to the commercial relationship between Unitrends BCDR Link and such organization and controlled by such organization.

4. CONSENT TO ELECTRONIC COMMUNICATIONS AND SOLICITATION.

By registering with Unitrends BCDR Link Services, you understand that we may send you communications or data regarding the Services, including but not limited to (a) notices about your use of the Services, including any notices concerning violations of use, (b) updates, and (c) promotional information and materials regarding Unitrends's products and services, via electronic mail. We give you the opportunity to opt-out of receiving electronic mail from us by following the opt-out instructions provided in the message.

5. CONTENT

Except for material that we license to you, we don't claim ownership of any Content that is transmitted, stored, or processed in your account(s). We also don't control, verify, or endorse the Content that you and others make available on the Service.

We provide functions that allow you to control who may access your Content. If you enable the features that allow you to share the Content with others, anyone you've shared content with may have access to your Content.

You hereby grant Unitrends and its contractors the right, to use, modify, adapt, reproduce, distribute, display and disclose Content posted on the Service solely to the extent necessary to provide the Service or as otherwise permitted by these Terms.

You represent and warrant that: (a) you have all the rights in the Content necessary for you to use the Service and to grant the rights in this Section; and, (b) the storage, use or transmission of the Content doesn't violate any law or these Terms.

You will: (a) be solely responsible for the nature, quality and accuracy of the Content; (b) ensure that the Content (including the storage or transmission thereof) complies with these Terms and any and all applicable laws, and regulations; (c) promptly handle and resolve any notices and claims relating to the Content, including any notices sent to you by any person claiming that any Content violates any person's rights, such as take-down notices pursuant to the Digital Millennium Copyright Act and any other notices; and (d) maintain appropriate security, protection and backup copies of the Content, which may include, your use of additional encryption technology to protect the Content from unauthorized access. Unitrends will have no liability of any kind as a result of the deletion of, correction of, destruction of, damage to, loss of or failure to store or encrypt any Content.

You must immediately notify Unitrends in writing of any unauthorized use of any (a) Content (b) any Account or (c) the Service that comes to your attention. In the event of any such unauthorized use by any third party that obtained access through you, you will take all steps necessary to terminate such unauthorized use. You will provide Unitrends with such cooperation and assistance related to any such unauthorized use as Unitrends may reasonably request.

6. CONTENT STORED IN THE UNITED STATES

The Service is provided from the United States. By using and accessing the Service, you understand and consent to the storage and processing of the Content and any other personal information in the United States. Unitrends reserves the right to store and process personal information outside of the United States, and will use commercially reasonable efforts to provide you with at least 30 days’ notice of any such changes in the processing location.

7. SUSPENSION AND TERMINATION OF CUSTOMER'S USE OF THE SERVICE

We reserve the right, to temporarily suspend or terminate your access to the Service at any time in our sole discretion, with or without cause, and with or without notice, without incurring liability of any kind. For example, we may suspend or terminate your access to or use of the BCDR Link Service for: (a) the actual or suspected violation of these Terms; (b) the use of the Services in a manner that may cause Unitrends to have legal liability or disrupt others' use of the Services; (c) the suspicion or detection of any malicious code, virus or other harmful code by you or in your account; (d) scheduled downtime and recurring downtime; (e) use of excessive storage capacity or bandwidth; or (f) unplanned technical problems and outages. If, in Unitrends' determination, the suspension might be indefinite and/or Unitrends has elected to terminate your access to the Service, Unitrends will use commercially reasonable efforts to notify you through the Service. You acknowledge that if your access to the Service is suspended or terminated, you may no longer have access to the Content that is stored with the Service.

Upon termination by Unitrends, for reasons other than cause, or at your direction, you may request access to your Content, which we will make available for an additional, reasonable fee. You must make such request with thirty (30) days following termination. Otherwise, any Content you have stored with the Service may not be retrievable, and we will have no obligation to maintain any data stored in your account.

8. ACCEPTABLE USE

You must not use the Service to harm others or the Service. For example, you must not use the Service to harm, threaten, or harass another person, organization, or Unitrends and/or to build a similar service or website. You must not: damage, disable, overburden, or impair the Service (or any network connected to the Service); resell or redistribute the Service or any part of it; use any unauthorized means to modify, reroute, or gain access to the Service or attempt to carry out these activities; or use any automated process or Service (such as a bot, a spider, or periodic caching of information stored by Unitrends) to access or use the Service. In addition, you promise that you will not and will not encourage or assist any third party to:

(a) modify, alter, tamper with, repair or otherwise create derivative works of any Software;

(b) reverse engineer, disassemble or decompile the software used to provide or access the Service, including the Software, or attempt to discover or recreate the source code used to provide or access the Service, except and only to the extent that the applicable law expressly permits doing so;

(c) use the Service in any manner or for any purpose other than as expressly permitted by these Terms, the Privacy Policy, any User Guides or any other policy, instruction or terms applicable to the Service that are available on the Service ("Policies");

(d) sell, lend, rent, resell, lease, sublicense or otherwise transfer, pledge, or encumber any of the rights granted to you with respect to the Services to any third party;

(e) remove, obscure or alter any proprietary rights notice pertaining to the Service;

(f) access or use the Service in a way intended to improperly avoid incurring fees or exceeding usage limits or quotas;

(g) use the Service in connection with the operation of nuclear facilities, aircraft navigation, communication systems, medical devices, air traffic control devices, real time control systems or other situations in which the failure of the Service could lead to death, personal injury, or physical property or environmental damage;

(h) use the Service to: (i) engage in any unlawful or fraudulent activity or perpetrate a hoax or engage in phishing schemes or forgery or other similar falsification or manipulation of data; (ii) send unsolicited or unauthorized junk mail, spam, chain letters, pyramid schemes or any other form of duplicative or unsolicited messages, whether commercial or otherwise; (iii) advertise or promote a commercial product or service that is not available through Unitrends (iv) store or transmit inappropriate Content, such as Content: (1) containing unlawful, defamatory, threatening, pornographic, abusive, libelous or otherwise objectionable material of any kind or nature, (2) containing any material that encourages conduct that could constitute a criminal offense, or (3) that violates the intellectual property rights or rights to the publicity or privacy of others; (iv) store or transmit any Content that contains or is used to initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware; or (v) abuse, harass, stalk or otherwise violate the legal rights of a third party;

(i) interfere with or disrupt servers or networks used by Unitrends to provide the Service or used by other users' to access the Service, or violate any third party regulations, policies or procedures of such servers or networks or harass or interfere with another user's full use and enjoyment of any Software or the Service;

(j) access or attempt to access Unitrends's other accounts, computer systems or networks not covered by these Terms, through password mining or any other means;

(k) cause, in Unitrends's sole discretion, inordinate burden on the Service or Unitrends's system resources or capacity;

Unitrends reserves the right, in its sole discretion, to deactivate, change and/or require you to change your Unitrends user ID and any custom or vanity URLs, custom links, or vanity domains you may obtain through the Services for any reason or for no reason. Unitrends may exercise such right at any time, with or without prior notice. We will make all judgments concerning the applicability of these guidelines in our sole and exclusive discretion. We reserve the right, in our sole discretion, to determine whether and what action to take in response to each such notification, and any action or inaction in a particular instance will not dictate or limit our response to a future complaint. We will not assume or have any liability for any action or inaction with respect to any Content.

9. UPDATES TO THE SERVICE

Unitrends reserves the right, in its sole discretion, to make necessary unscheduled deployments of changes, updates or enhancements to the Service at any time. We may add or remove functionalities or features, and we may suspend or stop a Service altogether.

10. SOFTWARE

If you receive Software from us, its use is governed in one of two ways: If you're presented with license terms that you must accept in order to use the Software, those terms apply; if no license is presented to you, these Terms apply. We reserve all other rights to the Software.

We may automatically check your version of the Software. We may also automatically download to your computer or device new versions of the Software.

Any Software is licensed, not sold. Unless we notify you otherwise, the Software license ends when your Service ends. You must then promptly uninstall the Software, or we may disable it. You must not work around any technical limitations in the Software.

The Software is subject to applicable U.S. export laws and regulations. You must comply with all domestic and international export laws and regulations that apply to the Software. These laws include restrictions on destinations, end users, and end use. Without limitation, you may not transfer the Software or Service without U.S. government permission to anyone on U.S. government exclusion lists (see the Commerce Department's compliance list at http://www.bis.doc.gov/complianceandenforcement/liststocheck.htm). You represent and warrant that you're not on any of those lists or under the control of or an agent for anyone on those lists or the entities listed above.

11. THIRD PARTY SERVICES AND CONTENT

All transactions using Unitrends' BCDR Link services are between the transacting parties only. The Services may contain features and functionalities linking you or providing you with certain functionality and access to third party content, including Web sites, directories, servers, networks, systems, information and databases, applications, software, programs, products or services, and the Internet as a whole; you acknowledge that we are not responsible for such content or services. We may also provide some content to you as part of the Services. However, Unitrends is not an agent of any transacting party, nor or we a direct party in any such transaction. Any such activities, and any terms associated with such activities, are solely between you and the applicable third-party. Similarly, we are not responsible for any third party content you access with the Services, and you irrevocably waive any claim against us with respect to such sites and third-party content. Unitrends shall have no liability, obligation or responsibility for any such correspondence, purchase or promotion between you and any such third-party. You should make whatever investigation you feel necessary or appropriate before proceeding with any online or offline transaction with any of these third parties. You are solely responsible for your dealings with any third party related to the Services, including the delivery of and payment for goods and services. Should you have any problems resulting from your use of any third party services, or should you suffer data loss or other losses as a result of problems with any of your other service providers or any third-party services, we will not be responsible unless the problem was the direct result of our breaches.

12. UNITRENDS PROPRIETARY RIGHTS

Between Unitrends and you, Unitrends or its licensors own and reserve all right, title and interest in and to the Service and all software and other items used to provide the Service, other than the rights explicitly granted to you to use the Service in accordance with this Terms. No title to or ownership of any proprietary rights related to the Service is transferred to you pursuant to these Terms. All rights not explicitly granted to you are reserved by Unitrends. In the event that you provide comments, suggestions and recommendations to Unitrends with respect to the Service (including, without limitation, with respect to modifications, enhancements, improvements and other changes to the Service) (collectively, "Feedback"), You hereby grant to Unitrends a world-wide, royalty free, irrevocable, perpetual license to use and otherwise incorporate any Feedback in connection with the Service.

13. PRIVACY

In order to operate and provide the Service, we collect certain information about you. As part of the Service, we may also automatically upload information about your computer or device, your use of the Service, and Service performance. We use and protect that information as described in the privacy policy ("Unitrends BCDR Link Privacy Policy"). You further acknowledge and agree that we may access or disclose information about you, including the content of your communications, in order to: (a) comply with the law or respond to lawful requests or legal process; (b) protect the rights or property of Unitrends or our customers, including the enforcement of our agreements or policies governing your use of the Service; or (c) act on a good faith belief that such access or disclosure is necessary to protect the personal safety of Unitrends employees, customers, or the public.

We retain the right to block or otherwise prevent delivery of any type of file, email or other communication to or from the Service as part of our efforts to protect the Service, protect our customers, or stop you from breaching these Terms. The technology or other means we use may hinder or break your use of the Service.

14. NO WARRANTY

UNITRENDS PROVIDES THE SERVICE "AS IS", "WITH ALL FAULTS" AND "AS AVAILABLE". TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, UNITRENDS MAKES NO (AND SPECIFICALLY DISCLAIMS ALL) REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING, WITHOUT LIMITATION, ANY WARRANTY THAT THE SERVICE WILL BE UNINTERRUPTED, ERROR-FREE OR FREE OF HARMFUL COMPONENTS, THAT THE CONTENT WILL BE SECURE OR NOT OTHERWISE LOST OR DAMAGED, OR ANY IMPLIED WARRANTY OF MERCHANTABILITY, SATISFACTORY QUALITY, FITNESS FOR A PARTICULAR PURPOSE, OR NON-INFRINGEMENT, AND ANY WARRANTY ARISING OUT OF ANY COURSE OF PERFORMANCE, COURSE OF DEALING OR USAGE OF TRADE. SOME JURISDICTIONS DO NOT ALLOW THE FOREGOING EXCLUSIONS. IN SUCH AN EVENT SUCH EXCLUSION WILL NOT APPLY SOLELY TO THE EXTENT PROHIBITED BY APPLICABLE LAW.

15. INDEMNIFICATION

To the extent permitted by law, You will defend Unitrends against any cost, loss, damage, or other liability arising from any third party demand or claim that any Content provided by you, or your use of the Service, in breach of these Terms: (a) infringes a registered patent, registered trademark, or copyright of a third party, or misappropriates a trade secret (to the extent that such misappropriation is not the result of Unitrends's actions); or, (b) violates applicable law or these Terms. Unitrends will reasonably notify you of any such claim or demand that is subject to your indemnification obligation.

16. LIMITATION OF LIABILITY

TO THE FULLEST EXTENT PERMITTED BY LAW, IN NO EVENT WILL UNITRENDS, ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS BE LIABLE FOR (A): ANY INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE, COVER OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, DAMAGES FOR LOST PROFITS, REVENUE, GOODWILL, USE OR CONTENT) HOWEVER CAUSED, UNDER ANY THEORY OF LIABILITY, INCLUDING, WITHOUT LIMITATION, CONTRACT, TORT, WARRANTY, NEGLIGENCE OR OTHERWISE, EVEN IF UNITRENDS HAS BEEN ADVISED AS TO THE POSSIBILITY OF SUCH DAMAGES. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE AGGREGATE LIABILITY OF UNITRENDS AND ITS AFFILIATES, OFFICERS, EMPLOYEES, AGENTS, SUPPLIERS OR LICENSORS, RELATING TO THE SERVICES WILL BE LIMITED TO  THE LESSER OF THE LICENSE FEE YOU PAID OR TWENTY DOLLARS ($20.00). THE LIMITATIONS AND EXCLUSIONS ALSO APPLY IF THIS REMEDY DOES NOT FULLY COMPENSATE YOU FOR ANY LOSSES OR FAILS OF ITS ESSENTIAL PURPOSE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OF INCIDENTAL, CONSEQUENTIAL OR OTHER DAMAGES. IN SUCH AN EVENT THIS LIMITATION WILL NOT APPLY TO YOU TO THE EXTENT PROHIBITED BY LAW.

17. CONTRACTING PARTY; GOVERNING LAW; LOCATION FOR RESOLVING DISPUTES

You are contracting with Unitrends, Inc. with an address at 7 Technology Circle, Suite 100, Columbia SC 29203 USA. The laws of the State of South Carolina U.S.A. govern the interpretation of these Terms and apply to claims for breach of these Terms, regardless of conflict of laws principles. The parties specifically exclude from application to these Terms the United Nations Convention on Contracts for the International Sale of Goods and the Uniform Computer Information Transactions Act. All other claims, including claims regarding consumer protection laws, unfair competition laws, and in tort, will, only to the extent required by applicable law, be subject to the laws of your state of residence in the United States, or, if you live outside the United States, the laws of the country in which you reside. You and we irrevocably consent to the exclusive jurisdiction and venue of the state or federal courts for South Carolina, USA, for all disputes arising out of or relating to these Terms. Unitrends may assign this contract to another entity at any time.

18. NOTICES

We may send you, in electronic form, information about the Service, additional information, and information the law requires us to provide. We may provide required information to you by email at the address you specified when you signed up for the Service or by access to a website that we identify. Notices emailed to you will be deemed given and received when the email is sent. If you don't consent to receive notices electronically, you must stop using the Service. You may provide legal notice to us via email to [email protected], with a duplicate copy sent via registered mail, return receipt requested, to the following address: Unitrends, Attn: Global Legal Services, 7 Technology Circle, Suite 100, Columbia, SC 29203. Any such notice, in either case, must specifically reference that it is a notice given under these Terms.

19. FREE SERVICE AND SUPPORT

The Unitrends BCDR Link is provided “AS IS” as a free service.  Unitrends is under no obligation to retain this service at no charge and may, upon its sole discretion and with reasonable notice, assess a charge for its BCDR Link service. Existing users of the free service will be offered an option to discontinue their free service or continue by agreeing to the charges. Unitrends may also add premium, enterprise, or business versions of this service that may be charged.  Users of the free service will be offered provisions to upgrade to paid versions of the service.  

Unitrends has no duty to provide support to you with respect to the Software available under the free service.  Support may be available from Unitrends community members at http://forum.unitrends.com/

 

20. MISCELLANEOUS

20.1. Severability; Entire Agreement

These Terms apply to the maximum extent permitted by relevant law. If a court holds that we cannot enforce a part of these Terms as written, you and we will replace those terms with similar terms to the extent enforceable under the relevant law, but the rest of this Terms will remain in effect. This is the entire contract between you and us regarding the Service. It supersedes any prior contract or oral or written statements regarding your use of the Service.

20.2. Assignment and transfer

We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice. You may not assign this contract or transfer any rights to use the Service.

20.3. Independent Contractors; No third-party beneficiaries

Unitrends and you are not legal partners or agents; instead, our relationship is that of independent contractors. This contract is solely for your and our benefit. It is not for the benefit of any other person, except for permitted successors.

20.4. Claims

Claims must be filed within one year. You must bring any claim related to these Terms or the Service within one year of the date you could first bring the claim, unless your local law requires a longer time to file claims. If it isn't filed in time, the claim is permanently barred.

20.5. Waiver

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms or to exercise any rights or remedies under these Terms will not be construed as a waiver or relinquishment to any extent of such party's right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect.

20.6. Government Use

If you are a U.S. government entity, you acknowledge that any Software and User Guides that are provided are "Commercial Items" as defined at 48 C.F.R. 2.101, and are being provided as commercial computer software subject to the restricted rights described in 48 C.F.R. 2.101 and 12.212.

21. COPYRIGHT COMPLAINTS AND REMOVAL POLICY

Unitrends does not tolerate content that appears to infringe any copyright or other intellectual property rights or otherwise violates these Terms and will respond to notices of alleged copyright infringement that comply with the law and are properly provided to us. Such notices can be reported by emailing [email protected] and filling out a form. We reserve the right to delete or disable Content alleged to violate these Terms and to terminate repeat infringers. Our designated agent for notice of alleged copyright infringement is:

Attn: Legal Services
Unitrends, Inc.
7 Technology Circle, Suite 100

Columbia, SC 29203

 email: [email protected]

Federal law requires your DMCA Notice to include the following information:

  1. Identification of the copyrighted work that you claim has been infringed;
  2. Identification of the material, including URL, that you claim is infringing, with enough detail so that we may locate it;
  3. Your address, telephone number, and e-mail address;
  4. A statement declaring under penalty of perjury that (a) you have a good faith belief that the disputed use is not authorized by the copyright owner, its agent, or the law; (b) the above information in your notice is accurate, and (c) you are the owner of the copyright interest involved or you are authorized to act on behalf of that owner; and
  5. Your physical or electronic signature.

INTELLECTUAL PROPERTY NOTICES

All contents of the BCDR Link Site and Services including but not limited to design, text, software, technical drawings, configurations, graphics, other files, and their selection and arrangement are: Copyright © 2014 Unitrends, and/or the proprietary property of its suppliers, affiliates, or licensors. All Rights Reserved.

Unitrends, BCDR Link, and the Unitrends and BCDR Link logos are including without limitation, either trademarks, service marks or registered trademarks of Unitrends, Inc., and may not be copied, imitated, or used, in whole or in part, without Unitrends' prior written permission or that of our suppliers or licensors. Other product and company names may be trade or service marks of their respective owners.

Unitrends may have patents, patent applications, trademarks, copyrights, or other intellectual property rights covering subject matter that is part of the Service. Unless we have granted you licenses to our intellectual property in these Terms, our providing you with the Service does not give you any license to our intellectual property. Any rights not expressly granted herein are reserved.