1. DEFINITIONS. Capitalized terms not defined elsewhere in these SaaS Terms, shall have the meanings set forth below.
1.1 “Administrator” means one or more Eligible Users, reseller parties (the term “reseller party” to include but not be limited to an managed service provider (MSP), value added reseller (VAR), or other authorized Backupify reseller from whom Customer purchases the Backupify Service) or other persons who Customer authorizes to control, manage and use the Backupify Services on Customer’s behalf, including access to and control of the Backedup Data.
1.2 “Affiliate” means any entity directly or indirectly controlling, controlled by, or under common control with, Customer or Backupify.
1.3 “Agreement” means an Order for Backupify Services together with these SaaS Terms.
1.4 “Backedup Data” means the data, information and other files that exist on Backedup Sites and which Customer designates for use and backup with the Backupify Services.
1.5 “Backedup Site” means a third party website or web-based application or service with which the Backupify Services interact, upon Customer’s authorization, to obtain a copy of the Backedup Data.
1.6 “Backupify” means Backupify, Inc. or any of its Affiliates that offer the Backupify Services.
1.7 “Backupify Services” means the services ordered by Customer and provided by Backupify by means of access to certain content and use of the features and functionality of software applications made available and accessible to Customer by Backupify solely to the extent set forth and further described in, and as limited by, the Customer’s Order and these SaaS Terms.
1.8 “Confidential Information” means all written or oral information, disclosed by either Party to the other, related to the operations of either Party or a third party that has been identified by the disclosing Party as confidential or that by the nature of the circumstances surrounding disclosure ought reasonably to be treated as confidential.
1.9 “Customer” is the Party who orders and is responsible for payment of the Backupify Services for use by Customer or its Eligible Users. A Customer may be an individual or a legal or governmental entity (e.g., corporation, limited liability company, educational institution, government agency). References to “Customer” in these SaaS Terms shall in the applicable context also refer to any Administrator or Eligible User acting on Customer’s behalf.
1.10 “Documentation” means the documentation provided by Backupify to Customer in electronic format that describe the features, functions and operation of the Backupify Services.
1.11 “Eligible User” means any individual affiliated with Customer who Customer authorizes to use the Backupify Services. If a Customer is an individual, the Customer may be the same person as the Eligible User. As between a Customer and an Eligible User, the Customer will be the owner of the Backedup Data and Customer is responsible for the acts and omissions of its Eligible Users.
1.12 “Order” means an order for Backupify Services that specifies the Backedup Site, data storage allotment and/or number of Eligible Users.
1.13 “Parties” means Backupify and Customer, each a Party.
1.14 “SaaS Terms” means these terms and conditions that together with an Order form a binding agreement between the Parties regarding use of the Backupify Services.
2. ACCESS, USE AND ELIGIBLE USERS.
2.1 Provision of Access. Subject to payment of the applicable fees, Backupify hereby grants Customer a non-exclusive, non-transferable right to permit access to and use of the Backupify Services during the Term for the number of Eligible Users and /or the applicable data storage allotment as set forth in an Order. Backupify shall provide to Customer the necessary passwords, scurity protocols, policies, network links or connections (“Access Protocols”) to allow Customer and its Eligible Users to access the Backupify Services. Customer will permit only Administrators and Eligible Users to access the Backupify Services through the Access Protocols and Customer will be responsible for any such use of the Backupify Services using Customer’s Access Protocols. Customer shall notify Backupify as soon as practicable of any unauthorized use of any Access Protocols, password or account or any other known or suspected breach of security. Customer bears responsibility for all acts and omissions of its Administrators and represents and warrants that Backupify may rely on the instructions and authorizations of such Administrators in connection with the Backupify Services. Customer shall be also responsible for all acts and omissions of Eligible Users, and any act or omission by such Eligible Users which, if undertaken by Customer, would constitute a breach of this Agreement, shall be deemed a breach of this Agreement by Customer.
2.2 Documentation License. Backupify hereby grants to Customer a non-exclusive, non-transferable right and license to use and reproduce the Documentation during the Term for Customer’s internal purposes solely in connection with its use of the Backupify Services.
2.3 Usage Restrictions. Customer will not: (a) copy, modify or duplicate the Backupify Services; (b) decompile, disassemble, reverse engineer or otherwise attempt to obtain or perceive the source code from which any software component of the Backupify Services is compiled or interpreted; (c) modify the Backupify Services or the Documentation, or create any derivative work from any of the foregoing, except with the prior written consent of Backupify; (d) assign, sublicense, sell, resell, lease, rent or otherwise transfer or convey, or pledge as security or otherwise encumber, Customer’s rights under this Agreement; (e) access or use the Backupify Services in any manner or for any purpose that infringes, misappropriates or otherwise violates any Intellectual Property Right or other right of any third party or that violates any applicable law or regulation; (f) build a similar or competitive product or service to the Backupify Services; or (g) damage, interfere with or disrupt the integrity, performance, security or use of the Backupify Services.
2.4 Notices. Customer will not conceal, remove or alter any proprietary notice or legend regarding Backupify’s proprietary rights in the Backupify Services.
2.5 Retained Rights; Ownership. As between the Parties, Customer retains all right, title and interest in and to the Backedup Data, and Backupify acknowledges that it neither owns nor acquires any additional rights in and to the Backedup Data not expressly granted under this Agreement. For purposes of this Agreement, a) Backedup Data is the Confidential Information of Customer, not the applicable Eligible User; b) Customer agrees to inform Eligible Users that Customer controls such information with Backupify; and c) Backupify is under no obligation to inform Eligible Users that Customer controls such information with Backupify. Backupify or its licensors retains all right, title and interest in and to the Backupify Services and the Documentation, including all technology, software, methods, and systems and intellectual and proprietary rights embodied therein and Customer acknowledges that neither Customer nor any Eligible User owns nor acquires any rights in and to the foregoing not expressly granted by this Agreement.
2.6 Feedback. Backupify in its sole discretion, may utilize, all comments, ideas, error reports and suggestions, whether written or oral, furnished by Customer or its Eligible Users or Administrators to Backupify in connection with its access to and use of the Backupify Services (all such comments and suggestions provided hereunder constitute, collectively, the “Feedback”) and shall not be considered Confidential Information. Customer hereby grants Backupify a worldwide, non-exclusive, irrevocable, perpetual, sub-licensable, assignable, royalty-free right and license to incorporate the Feedback into Backupify products and services.
2.7 Communication with Administrators and Eligible Users. As part of the provision of the Backupify Services, Backupify may need to communicate with Administrators and Eligible Users from time-to-time. Customer hereby grants Backupify the limited right to communicate with Administrators and Eligible Users as may be necessary as part of the provision of the Backupify Services, in Backupify’s reasonable discretion.
3. BACKUPIFY RIGHTS AND OBLIGATIONS.
3.1 Services. Backupify will undertake commercially reasonable efforts to save a copy of the Backedup Data to a server operated by Backupify or its agents. In accordance with the Documentation, Backupify will automatically poll such Backedup Sites’ API for changes or additions to the Backedup Data and periodically re-save a copy of a modified file or create a copy of a newly designated file. Backupify will provide the Backupify Services in accordance with the Service Level Agreement (“SLA”) set forth at https://www.backupify.com/service-level-agreement, as may be amended from time to time by Backupify.
3.2 Authorization to Access Backedup Data. Customer, on behalf of itself and its Eligible Users, hereby authorizes Backupify to act on Customer’s behalf to access and interact with the Backedup Site so Backupify can retrieve and store duplicate copies of the Backedup Data. Backupify will store the unique authorization code provided to Backupify by the Backedup Site (a “Token”) to access such site on Customer’s or an Eligible User’s behalf.
3.3 Access to Backedup Sites. Customer agrees and acknowledges that a Backedup Site may change or amend its guidelines and Backupify’s access to it at any time, and Backupify cannot guarantee that the Backupify Services will always include a connection to such Backedup Site. If any such change materially affects Backupify’s ability to perform the Backupify Services, Backupify will notify Customer and the Parties will work together to reasonably resolve the Backupify’s lack of access to the Backedup Site, provided that if Backupify is unable to perform substantially the same functionality to Customer as in the Backupify Services, either Party may terminate the applicable Order by providing written notice to the other Party within thirty (30) days of the date such connectivity is terminated. In such event, Backupify shall refund to Customer any unused prepaid fees for the remainder of the applicable Term as its sole and exclusive remedy.
3.4 Professional Services. Backupify will provide Customer with reasonable support regarding the installation, configuration and use of the Backupify Services. If separately agreed in writing by the Parties, Backupify may also provide consulting, customization or other professional services with respect to the Backupify Services.
3.5 Continuous Development. The Parties acknowledge and agree that Backupify may continually develop, deliver and provide to Customer ongoing innovation to the Backupify Services in the form of new features, functionality, capabilities and services. Accordingly, Backupify reserves the right to modify the Backupify Services from time to time. Some modifications will be provided to Customer at no additional charge. In the event Backupify adds additional services to the Backupify Services, Backupify may condition the implementation of such services on Customer’s payment of additional fees.
3.6 Security and Business Continuity. Backupify shall employ reasonable measures designed to: (a) ensure that all Backupify Services are free from viruses, worms, Trojan horses, spyware, adware, and other malicious code; and (b) protect the security of the Backedup Data and Backupify Services. Backupify’s data security program will include reasonable administrative, physical and technical measures against the loss, unavailability, unauthorized access or alteration of Backedup Data in the possession or under the control of Backupify. However, no password-protected system of data storage and retrieval can be made entirely impenetrable and Customer acknowledges and accepts that despite the reasonable measures employed, the Backupify Services are not invulnerable to all security breaches or immune from viruses, security threats or other vulnerabilities.
4. CUSTOMER RIGHTS AND OBLIGATIONS.
4.1 Rights to Backedup Data Customer represents and warrants that it will, at its own expense, obtain sufficient rights and all third party consents and/or permissions that may be necessary and appropriate to permit Backupify’s access to, collection of, use, transmission and display of the Backedup Data in accordance with this Agreement (including from Backedup Sites and Eligible Users). Customer hereby grants to Backupify a limited, royalty-free, non-exclusive, assignable license to use, copy, reformat, display, disclose and distribute the Backedup Data solely for the purpose of providing the Backupify Services and as otherwise necessary for exercising Backupify’s rights or performing Backupify’s obligations under this Agreement.
4.2 Customer Assistance Certain data, information and materials from Customer are required for the proper operation of the Backupify Services, including the list of Eligible Users. Customer shall make available in a timely manner at no charge to Backupify all such information required by Backupify for the performance of its obligations under this Agreement, and Customer will ensure such information is truthful, complete, and accurate. Customer shall be responsible for and assumes the risk, responsibility and expense of (a) any problems resulting from, the accuracy, quality, integrity, legality, reliability, and appropriateness of its Backedup Data; and (b) acquiring, installing and maintaining all connectivity, hardware, software and other equipment as may be necessary for it and its Administrators and Eligible Users to connect to, access, and use the Backupify Services.
4.3 Backedup Data. Customer represents, warrants and agrees that Backedup Data will not: (a) infringe any copyright, trademark, patent or other proprietary right of others; (b) misappropriate any trade secret; (c) be deceptive, fraudulent, defamatory, obscene, pornographic, invasive of another’s privacy, hateful, or racially, ethnically or otherwise objectionable; (d) contain any viruses, worms or other malicious computer programming codes able to damage the Backupify Services; (e) violate the terms and conditions of the Backedup Site on which it is located; or (f) otherwise violate any applicable laws or the rights of a third party. In the event that Backupify reasonably believes any Backedup Data contains illegal content or otherwise violates any of the foregoing restrictions, Backupify reserves the right to refuse or disable Customer’s and/or eligible Users’ access to, or remove or delete such Backedup Data, provided that Backupify will use reasonable efforts to contact Customer prior to any such restriction, removal or deletion.
4.4 Continued Access to Backedup Data. Customer will be responsible to maintain authorization and access for Backupify to Backedup Sites in order to ensure that Backupify is regularly able to access Backedup Data. Customer agrees and acknowledges that Backedup Data may not be available or restorable a) if Backupify has not completed copying the selected files or changed files before Customer, Administrator or an Eligible User changes such access authority, passwords or otherwise restricts Backupify’s access to such Backedup Site; b) in the event of unavailability of or access modifications to the Backedup Site; c) with respect to modifications to the Backedup Data that are not captured in the backup frequency schedule for the Backupify Services; or (d) after termination or expiration of this Agreement.
5. FEES AND EXPENSES; PAYMENTS.
5.1 Fees Apply to Direct Order. The remainder of this Section 5 will only apply between the Parties in situations where Customer orders Backupify Services directly from Backupify. Where Customer orders Backupify Services through an authorized reseller, Customer will pay all fees for Backupify Services to such reseller according to the terms and at the prices agreed between Customer and such reseller.
5.2 Fees. Where Customer orders Backupify Services directly from Backupify, Customer will pay Backupify, without offset or deduction, all fees due for the Backupify Services. Fees and payments shall be calculated by Backupify solely based on records maintained by Backupify, and Customer must notify Backupify of any payment dispute in writing within fifteen (15) days of receipt of invoice. Unless otherwise specified, all fees shall be due and payable monthly. Backupify will, as mutually agreed: (i) invoice Customers in which case Customer will pay such invoice within thirty (30) days of its receipt thereof or (ii) automatically charge Customer the credit card on file with Backupify each month for all fees incurred by Customers for such month, in which case Customer authorizes and agrees that Backupify may charge such credit card each month for such payment, or as otherwise mutually agreed. Customer agrees to provide Backupify with complete and accurate billing and contact information. This information includes legal company name, street address, e-mail address and name and telephone number of an authorized billing contact. Customer agrees to update this information within three (3) days of any change.
5.3 Free Trials. From time to time Backupify may offer certain Backupify Services for free during a trial period. During any free trial period for the Backupify Services, all of these SaaS Terms will apply, except for the relevant subsections in this Section 5 concerning payment, and certain additional trial terms and conditions may apply. ANY BACKEDUP DATA SAVED DURING A FREE TRIAL WILL BE PERMANENTLY DELETED FOLLOWING THE TRIAL PERIOD UNLESS a) A PAID ORDER IS PLACED FOR THE SAME BACKUPIFY SERVICES; or b) THE BACKED UP DATA IS EXPORTED BY CUSTOMER.
5.4 Taxes. Customer will be responsible for payment of any applicable sales, use and other taxes and all applicable export and import fees, customs duties and similar charges (other than taxes based on Backupify’s income), and any related penalties and interest for the grant of rights hereunder, or the delivery of the Backupify Services. Customer will make all required payments to Backupify free and clear of, and without reduction for, any withholding taxes. Any such taxes imposed on payments to Backupify will be Customer’s sole responsibility, and Customer will, upon Backupify’s request, provide Backupify with official receipts issued by the appropriate taxing authorities, or such other evidence as Backupify may reasonably request, to establish that such taxes have been paid.
5.5 Late Payments; Interest; Payment in Dollars. Any portion of any amount payable hereunder that is not paid when due will accrue interest at one and one-half percent (1.5%) per month or the maximum rate permitted by applicable law, whichever is less, from the due date until paid. All payments to be made under this Agreement shall be made in U.S. dollars.
6 TREATMENT OF CONFIDENTIAL INFORMATION.
6.1 Ownership of Confidential Information. The Parties acknowledge that during the performance of this Agreement, each Party will have access to certain of the other Party’s Confidential Information that the disclosing Party is required to maintain as confidential. As between the Parties, both Parties agree that all items of Confidential Information are proprietary to the disclosing Party and will remain the sole property of the disclosing Party.
6.2 Mutual Confidentiality Obligations. Each Party agrees to employ reasonable safeguards to: (a) use Confidential Information disclosed by the other Party only for the purposes described herein; (b) hold in confidence and protect such Confidential Information from dissemination to, and use by, any third party; (c) not reproduce or create any derivative work from Confidential Information disclosed to such Party by the other Party except as needed to provide the Backupify Services; (d) restrict access to the Confidential Information disclosed by the other Party to such of its personnel, agents, and/or consultants, if any, who have a need to have access and who have been advised of and have agreed in writing to treat such information in accordance with the terms of this Agreement; and (e) return or destroy, pursuant to Section 10.4, all Confidential Information disclosed by the other Party that is in its possession upon termination or expiration of this Agreement. Notwithstanding the foregoing, Customer agrees that: (a) Backupify may disclose certain Backedup Data to the Backedup Site to the extent required by the terms under which it is granted access to that Backedup Site; and (b) Backupify may collect aggregated statistical data regarding Customer or its Eligible Users’ use of the Backupify Services (“Aggregate Data”). Aggregate Data will not include any personally identifiable information regarding Customer or any Eligible User and will not be considered Confidential Information hereunder.
6.3 Confidentiality Exceptions. Notwithstanding the foregoing, the provisions of Sections 6.1 and 6.2 will not apply to Confidential Information to the extent it (a) is publicly available or in the public domain at the time disclosed; (b) is or becomes publicly available or enters the public domain through no fault of the recipient; (c) is rightfully communicated to the recipient by persons not bound by confidentiality obligations with respect thereto; (d) is already in the recipient’s possession free of any confidentiality obligations at the time of disclosure; (e) is independently developed by the recipient; (f) is approved for release or disclosure by the disclosing Party without restriction; or (g) consists of Aggregate Data or Feedback. Each Party may also disclose Confidential Information to the limited extent required (x) in order to comply with the order of a court or other governmental body, or as otherwise necessary to comply with applicable law, provided that the Party making any such disclosure, where possible, shall first have given written notice to the other Party in order to allow the other Party to seek, at its sole cost and expense, a protective order or other remedy to limit such disclosure; or (y) to establish a Party’s rights or enforce obligations under this agreement, but only to the extent that any such disclosure is necessary.
7 REPRESENTATIONS; WARRANTIES; DISCLAIMER.
7.1 Mutual Warranty. Each Party hereby represents and warrants that the (a) execution and performance of this Agreement will not conflict with or violate any provision of any law or regulation having applicability to such Party; (b) that the execution and performance of this Agreement will not be in violation of any agreement or obligation of such Party to a third party or in violation of the rights of any third party; and (c) that this Agreement, when executed and delivered, will constitute a valid and binding obligation of such Party and will be enforceable against such Party in accordance with its terms.
7.2 Disclaimer. EXCEPT AS EXPRESSLY REPRESENTED OR WARRANTED IN THIS AGREEMENT, TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, THE BACKUPIFY SERVICES, THE DOCUMENTATION, AND ALL SERVICES PERFORMED BY BACKUPIFY ARE PROVIDED “AS IS,” AND BACKUPIFY DISCLAIMS ANY AND ALL OTHER REPRESENTATIONS AND WARRANTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, SYSTEM INTEGRATION AND/OR DATA ACCURACY. BACKUPIFY DOES NOT WARRANT THAT THE BACKUPIFY SERVICES OR ANY OTHER SERVICES PROVIDED BY BACKUPIFY WILL MEET CUSTOMER’S REQUIREMENTS OR THAT THE OPERATION OF THE BACKUPIFY SERVICES WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT ALL ERRORS WILL BE CORRECTED. BACKUPIFY IS NOT RESPONSIBLE FOR COMPLIANCE WITH, AND MAKES NO REPRESENTATION OR WARRANTY THAT THE BACKUPIFY SERVICES WILL COMPLY WITH, ANY LAW OR REGULATION APPLICABLE TO CUSTOMER OR CUSTOMER’S INDUSTRY. BACKUPIFY’S SERVICES MAY BE SUBJECT TO LIMITATIONS, DELAYS, AND OTHER PROBLEMS INHERENT IN THE USE OF THE INTERNET AND ELECTRONIC COMMUNICATIONS. BACKUPIFY IS NOT RESPONSIBLE FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER DAMAGE RESULTING FROM SUCH PROBLEMS. BACKUPIFY SHALL NOT HAVE ANY LIABILITY WHATSOEVER FOR THE ACCURACY, COMPLETENESS, OR TIMELINESS OF THE BACKEDUP DATA, OR FOR ANY DECISION MADE OR ACTION TAKEN BY CUSTOMER IN RELIANCE UPON ANY BACKEDUP DATA.
8 LIMITATIONS OF LIABILITY.
8.1 Limitation of Liability. IN NO EVENT WILL BACKUPIFY BE LIABLE FOR ANY INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF THE CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION, OR LIABILITIES TO THIRD PARTIES ARISING FROM ANY SOURCE, EVEN IF BACKUPIFY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THE CUMULATIVE LIABILITY OF BACKUPIFY TO CUSTOMER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, WILL NOT EXCEED THE FEES PAID BY CUSTOMER FOR BACKUPIFY SERVICES DURING THE SIX (6) MONTH PERIOD PRECEDING THE EVENT GIVING RISE TO THE CLAIM. THESES LIMITATIONS UPON DAMAGES AND CLAIMS ARE INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
8.2 Essential Basis. Customer acknowledges and understands that the disclaimers, exclusions and limitations of liability set forth in Sections 7 and 8 form an essential basis of the agreement between the Parties and that absent such disclaimers, exclusions and limitations of liability, the terms, conditions and payment obligations of this Agreement would be substantially different.
9.1 By Backupify. Backupify will defend at its expense any suit brought against Customer by a third party, and will pay any settlement Backupify makes or approves, or any damages finally awarded in such suit, insofar as such suit is based on a claim by any third party alleging that the Backupify Services when used in accordance with these SaaS Terms misappropriate any United States intellectual property rights. If such a claim is made or is likely, Customer agrees to permit Backupify, at Backupify’s sole discretion, to enable it to continue to use the Backupify Services or to modify or replace any such infringing material to make it non-infringing. If Backupify determines that none of these alternatives is reasonably available, Customer shall, upon written request from Backupify, cease use of, and, if applicable, return, such materials as are the subject of the infringement claim and Backupify may terminate this Agreement or the Backupify Services. The foregoing indemnification obligation shall not apply if the alleged infringement arises, in whole or in part, from the Backedup Data or any use of the Backupify Services not in accordance with these SaaS Terms. THIS SECTION STATES BACKUPIFY’S ENTIRE OBLIGATION AND LIABILITY WITH RESPECT TO ANY CLAIM OF INFRINGEMENT.
9.2 Customer’s Indemnity Obligations. Customer agrees to hold harmless, indemnify, and, at Backupify’s option, defend Backupify from and against any losses, liabilities, costs (including reasonable attorneys’ fees) or damages to the extent resulting from the Backedup Data or any breach of these SaaS Terms.
9.3 Process. Any indemnification obligations set forth in this Agreement will be subject to the following conditions: (a) the indemnified Party will notify the indemnifying Party in writing promptly upon learning of any claim or suit for which indemnification is sought; (b) the indemnifying Party will have control of the defense or settlement; and (c) the indemnified Party will reasonably cooperate with the defense, at the indemnifying Party’s expense.
10 TERM AND TERMINATION.
10.1 Term. The term for each Order will commence on the Effective Date of an Order as specified by Backupify and will continue for an initial term of one (1) year from the Effective Date, unless earlier terminated in accordance with this Section 10. Unless otherwise specified, each Order will automatically renew for a period of one (1) year at the end of the then-current term unless either Party provides written notice of its desire to terminate at least ninety (90) days prior to the expiration of the then-current term (the initial term and each renewal term are collectively the “Term”).
10.2 Termination for Breach. Either Party may, at its option, terminate an Order in the event the other Party materially breaches any of its duties, obligations or responsibilities under these SaaS Terms and fails to cure such breach (or provide an acceptable plan for curing such breach) within thirty (30) days after receipt by the breaching Party of written notice specifying the breach.
10.3 Suspension of Access. Backupify may suspend Customer’s access to the Backupify Services in the event any amount due under this Agreement is not received when due and Customer has not paid such amount within five (5) days of receipt of written notice of such overdue payment. In addition, Backupify may suspend access to the Backupify Services for any Customer or Eligible User who does not use the Backupify Services in conformance with these SaaS Terms, or if Backupify, in its reasonable discretion, has reason to believe whose use poses a threat to the security of Backupify Services or is in violation of section 2.3 or 4.3. Backupify will use commercially reasonable efforts where possible to provide notice in advance of such suspension and in any case within twenty four (24) hours after commencing such suspension.
10.4 Effect of Termination. Upon any termination of an Order, Customer will immediately discontinue all use of the Backupify Services and pay all amounts due and payable hereunder. Each Party will promptly delete any Confidential Information of the other Party, except that Backupify may retain Backedup Data for such time as may be required by law or otherwise, to prevent fraud, resolve disputes, troubleshoot problems, or enforce these SaaS Terms. For up to thirty (30) days after the effective date of termination, Backupify will, upon written request by Customer, use commercially reasonable efforts to provide Customer and/or an Eligible User with a copy of its Backedup Data in a format supported by Backupify. After such periods as specified in this section, Backupify may delete Backedup Data and Customer acknowledges and agrees that Backupify will have no liability for any such deletion.
10.5 Survival. The provisions of Sections 2.5, 2.6, 2.7, 4.1, 4.3, 4.4, 5-9, 10.4, 10.5 and 11 will survive the termination or expiration of this Agreement.
11.1 Entire Agreement. This Agreement sets forth the entire agreement and understanding between the Parties and, except as specifically provided herein, supersedes and merges all prior agreements between the Parties with respect to the subject matter hereof, and neither of the Parties will be bound by any conditions, inducements or representations other than as expressly provided for herein.
11.2 Independent Contractors. Nothing contained herein will be construed or implied to create an agency, partnership or employer and employee relationship between the Parties.
11.3 Notices. All notices required or permitted hereunder will be in writing, delivered by nationally recognized overnight courier (e.g., UPS, FedEx) at the Parties’ respective addresses set forth in the original Order. Notices will be deemed effective upon receipt as evidenced by courier delivery confirmation. In addition, Backupify may send any notice required or permitted hereunder via email to the address specified on the original Order and such notice will be deemed effective upon receipt by Backupify of email delivery notification.
11.4 Amendments; Modifications. This Agreement may not be amended or modified except in a writing duly executed by authorized representatives of both Parties.
11.5 Assignment; Delegation. Customer shall not assign any of its rights or delegate any of its duties under this Agreement without the express, prior written consent of Backupify. Absent such consent, any attempted assignment or delegation will be null and void. Backupify may assign its rights or delegate its duties under this Agreement to any Affiliate.
11.6 No Third Party Beneficiaries. The Parties acknowledge that the covenants set forth in this Agreement are intended solely for the benefit of the Parties, their successors and permitted assigns. Nothing herein, whether express or implied, will confer upon any person or entity, other than the Parties, their successors and permitted assigns, any legal or equitable right whatsoever to enforce any provision of this Agreement.
11.7 Severability. If any provision of this Agreement is invalid or unenforceable for any reason in any jurisdiction, such provision will be construed to have been adjusted to the minimum extent necessary to cure such invalidity or unenforceability. The invalidity or unenforceability of one or more of the provisions contained in this Agreement will not have the effect of rendering any such provision invalid or unenforceable in any other case, circumstance or jurisdiction, or of rendering any other provisions of this Agreement invalid or unenforceable whatsoever.
11.8 Waiver. No waiver under this Agreement will be valid or binding unless set forth in writing and duly executed by the Party against whom enforcement of such waiver is sought. Any such waiver will constitute a waiver only with respect to the specific matter described therein and will in no way impair the rights of the Party granting such waiver in any other respect or at any other time.
11.9 Force Majeure. Except with respect to payment obligations hereunder, if a Party is prevented or delayed in performance of its obligations hereunder as a result of circumstances beyond such Party’s reasonable control, including, by way of example, Internet access outside of Backupify’s control, war, terror, riot, fires, floods, epidemics, or failure of public utilities or public transportation systems, such failure or delay will not be deemed to constitute a material breach of this Agreement, but such obligation will remain in full force and effect, and will be performed or satisfied as soon as reasonably practicable after the termination of the relevant circumstances causing such failure or delay, provided that if such Party is prevented or delayed from performing for more than ninety (90) days, the other Party may terminate this Agreement upon thirty (30) days’ written notice.
11.10 Arbitration. Except as provided below, any and all disputes arising from or relating to the subject matter of the terms of this Agreement shall be settled by binding arbitration in accordance with the rules then in effect of the American Arbitration Association. Judgment upon the award rendered by way of such arbitration may be entered in any court having jurisdiction thereof. Costs of arbitration (including reasonable attorneys’ fees) shall be made a part of the arbitrator’s award. The arbitration shall take place in Fairfield County, Connecticut. Notwithstanding the foregoing, the parties retain the right to seek and obtain preliminary or permanent injunctive relief from a court specified in Section 11.11
11.11 Governing Law. This Agreement will be governed by and interpreted in accordance with the laws of Connecticut. For purposes of all claims brought under this Agreement, each of the Parties hereby irrevocably submits to the exclusive jurisdiction of the state and federal courts located in Fairfield County, Connecticut.
11.12 Headings. The headings in this Agreement are inserted merely for the purpose of convenience and will not affect the meaning or interpretation of this Agreement.
11.13 Publicity. Within thirty (30) days after execution of this Agreement, Backupify may issue a press release announcing the relationship with Customer, subject to Customer’s approval, which will not be unreasonably withheld. Backupify may publicly refer to Customer orally and in writing, including on Backupify’s website and sales presentations, as a customer of Backupify and may use Customer’s logo for such purposes.