PLEASE READ THIS TERMS OF USE (the “Agreement”) CAREFULLY. IT IS A LEGAL AND BINDING CONTRACT BETWEEN YOU AND BACKUP RADAR, L.L.C. (“Backup Radar”). WHEN YOU CREATE AN ACCOUNT TO ACCESS THE BACKUP RADAR SOFTWARE-AS-A-SERVICE (the “Services”), YOU AGREE THAT YOU UNDERSTAND THE AGREEMENT AND AGREE TO BE BOUND BY IT IN ITS ENTIRETY. IF YOU DO NOT AGREE TO ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, YOU MAY NOT ACCESS THE SERVICES. IF YOU ARE CREATING AN ACCOUNT FOR BACKUP RADAR’S SERVICES ON BEHALF OF A CORPORATION OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND THE LEGAL ENTITY, AND YOU AGREE THAT THE LEGAL ENTITY WILL BE BOUND BY EACH AND EVERY PROVISION OF THE AGREEMENT.

The Services are owned and operated by Backup Radar and are offered subject to your acceptance without modification of all of the terms and conditions contained herein and all other operating rules, policies (including, without limitation, the Backup Radar Privacy Policy) and procedures that may be published by Backup Radar from time to time through the Backup Radar website (www.backupradar.com).

 

1. Term

The term of this Agreement begins on the date your Backup Radar account is activated and continues on a month-to-month basis until either party terminates this Agreement pursuant to the terms hereof.

 

2. Your Account

2.1 Your use of the Services is governed by and subject to each and every term of this Agreement. The terms “you” and “your” as used in this Agreement pertain to each subscriber of the Services. You agree that each person listed in your account information is your agent and has full authority to act on your behalf as to the Services. The terms of this Agreement will cover any situation where you use and access the Services or you permit a person to use and access the Services, even if that person is not listed on your account information.

2.2 You are fully responsible for all activities that occur under the account and any other actions taken in connection with your account. You must not publish content in your Backup Radar in a misleading or unlawful manner, including in a manner intended to trade on the name or reputation of others, and Backup Radar may change or remove any description or keyword that it considers inappropriate or unlawful, or otherwise likely to cause Backup Radar liability. You must immediately notify Backup Radar of any fraudulent or unauthorized uses of Backup Radar, your account, or any other breaches of security. Backup Radar will not be liable for any acts or omissions by you, your clients, or any other users of your account, including any damages of any kind incurred as a result of such acts or omissions.

2.3 You must provide your full legal name, current address, valid e-mail address, and any other information necessary to complete the Backup Radar signup process.

2.4 Your login may only be used by one person. Sharing a single user login between multiple people is not permitted. You may create separate user logins for multiple people, provided your account plan permits.

2.5 You are responsible for keeping your password (and any other users’ passwords under your account) secure. Backup Radar cannot and will not be held liable for any loss or damages from your failure to maintain the security of your account or passwords.

2.6 You are responsible for all charges incurred by your Backup Radar account.

 

3. Payment of Fees, Refunds, and User Changes

3.1 A valid credit card is required to use the Services.

3.2 The monthly fee is based on the plan you select, unless a valid promotional code entered during the signup process permits otherwise.

3.3 You may change the number of users at any time. Added users are billed on the first of the following month. Removed users will not be reflected until the next billing period.

3.4 Backup Radar does not provide refunds for Services for any reason whatsoever, except for administrative errors or where a representative of Backup Radar has expressly offered a refund.

3.5 All fees are exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for payment of all such taxes, levies, or duties.

3.6 In the event payment is not received for the Services due to a declined attempt to charge your credit card, expired credit card, or otherwise, and payment is not received within 7 days of the initial attempt, your account will be suspended. If a suspended account is not reactivated and the outstanding account balance paid in full within one (1) month, it will be cancelled and all account data will be permanently deleted in accordance with this Agreement.

 

4. Prohibited Conduct

You agree that you will not use the Services to (a) upload or otherwise transmit any information, domain name, or any other information or data that is unlawful, threatening, abusive, harassing, tortious, defamatory, vulgar, obscene, libelous, invasive of another's privacy, hateful, or racially, ethnically, or otherwise objectionable; (b) harm minors in any way; (c) impersonate any person or entity, including, but not limited to, any Backup Radar representative, or misrepresent Backup Radar’s affiliation with any person or entity; (d) forge headers or otherwise manipulate identifiers in order to disguise the origin of any stored information transmitted through the Services; (e) upload or otherwise transmit any stored information that you do not have a right to transmit under any law or under contractual relationships (such as inside information, proprietary, and confidential information learned or disclosed as part of employment relationships, or under nondisclosure agreements); (f) upload or otherwise transmit any stored information or domain name that infringes any patent, trademark, trade secret, copyright, or other proprietary rights of any person; (g) upload or otherwise transmit any unsolicited or unauthorized advertising, promotional materials, 'junk mail', 'spam', 'chain letters', 'pyramid schemes', or any other form of solicitation, except in those areas of the Services that may be designated for such purpose; (h) upload or otherwise transmit any material that contains software viruses or any other computer code, files or programs designed to interrupt, destroy or limit the functionality of any computer software or hardware or telecommunications equipment; (i) interfere with or disrupt the Services or servers or networks connected to the Services; (j) violate any applicable law or regulation, including, but not limited to, regulations promulgated by the U.S. Securities and Exchange Commission and any rules of any securities exchange, and laws regarding the export of technical data; (k) incite or provide instructional information about illegal activities; or (l) conduct raffles, contests, lotteries, or sweepstakes.

 

5. Support

The Services include access to email support. “Email support” means the ability to make requests for technical support assistance by email at any time (with reasonable efforts by Backup Radar to respond within two business days) concerning the use of the Services.

 

6. Copyright and Subscriber Data Ownership

6.1 The content published by Backup Radar through the Services and its website, including, but not limited to, HTML/CSS, Javascript, visual design elements, concepts, and copy are copyrighted materials owned by Backup Radar. All rights are reserved. All content uploaded or published by you via the Service must comply with all applicable copyright laws. You may not duplicate, copy, or reuse any portion of the content without express written permission from Backup Radar.

6.2 Further, in order to protect Backup Radar’s intellectual property rights, and except as permitted by applicable legislation, you may not:

6.2.1 Decompile, reverse engineer, disassemble, modify, translate, otherwise reduce the software to a human-perceivable form, or make any attempt to discover the source code.

6.2.2 Modify, network, rent, lend, loan, distribute, or create derivative works based upon the software in whole or in part.

6.2.3 Electronically transmit the software from one computer to another or over a network.

6.2.4 Sublicense, rent, or lease any portion of the software to another user.

6.3 We claim no copyright or intellectual property over the content you provide to the Services. Content you upload to the Services remains yours. However, by setting any content to be publicly available, you agree to allow others to view and share your content.

6.4 Subscriber data, pertaining to documentation or any derivatives thereof stored in the Services (the “Subscriber Data”) shall be and remain the sole and exclusive property of you, the Subscriber. You are able to export your Subscriber Data at any time from inside the application. Backup Radar is provided a license to Subscriber Data hereunder for the sole and exclusive purpose of providing the Services, including a license to store, record, transmit, maintain, and display Subscriber Data as necessary for the provisioning of the Services.

6.5 You shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and intellectual property ownership or right to use of all Subscriber Data, and Backup Radar shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any Subscriber Data.

6.6 Backup Radar does not have direct access to your account data, except when granted permission for the purposes of technical support, demonstrations, etc. In this scenario, full auditing/logging is available showing create, retrieve, update and delete functions. Subscriber Data is accessible only in summarized report format for the purposes of account management and product management. While developers have access to the underlying infrastructure, they are not permitted to view, change or export this data in any way.

6.7 Backup Radar is built as a multi-tenant, Software-as-a-Service platform. Individual subscriber data is secured at a very high level between subscribers. Sharing of information between subscribers is possible within the platform through granting external access, but this function can only be enabled by the subscriber wishing to share data, not another subscriber or Backup Radar.

 

7. Cancellation and Termination

7.1 You may terminate this Agreement at any time by providing Backup Radar thirty (30) days’ written notice of your decision. Backup Radar may terminate this Agreement and your access to all or any part of the Services at any time, with or without cause, with or without notice, effective immediately, if it believes, in its sole judgement, that you have breached or may breach any term or condition of this Agreement. Backup Radar may terminate the Services immediately, without penalty, as part of a general shut down of our Services. All provisions of this Agreement which by their nature should survive termination shall survive termination, including, without limitation, ownership provisions, warranty disclaimers, indemnity and limitations of liability.

7.2 In the event of termination of your account, you will be charged for any outstanding amounts owing at the end of your billing cycle, including, without limitation, any fees incurred during your last month of service.

7.3 In the event your account is terminated, any and all of your data that is stored on Backup Radar’s systems may be permanently deleted after 14 days of the final termination date. Prior to data being deleted, provisions can be made to allow access to an export of your data by written request to Backup Radar.

 

8. Confidentiality

You agree that the Services contain proprietary information, including, but not limited to, trade secrets, know-how, and other confidential information that is Backup Radar’s exclusive property. During the effective period of this Agreement and all times afterward, you and your agents agree that you will not disclose any trade secrets, know-how, confidential information to third-parties without Backup Radar’s prior written authorization. You further agree to take the necessary precautions to safeguard and maintain the confidentiality of Backup Radar’s trade secrets, know-how, and confidential information. You agree that any breach of this Section will irreparably harm Backup Radar and that Backup Radar is entitled to seek injunctive relief in addition to any other remedies that Backup Radar may have at law or in equity.

 

9. Security

Backup Radar takes commercially reasonable measures to secure and protect information transmitted to and from Backup Radar’s website. However, Backup Radar cannot and does not guarantee that any such communications or any electronic commerce conducted on or through the website is or will be totally secure. You are responsible for maintaining the confidentiality of any login User ID and any password that may be assigned to you by Backup Radar, and you are fully responsible for all access and any activity that occurs through use of your User ID or password. You agree to immediately notify Backup Radar of any unauthorized use of your User ID or password or any other breach of site security of which you become aware. You also agree to take such further steps as may be reasonably requested by Backup Radar to prevent unauthorized use of your User ID and password. Backup Radar cannot and will not be liable for any loss or damage arising from any unauthorized access or use of your User ID or password.

 

10. Changes to the Service, Pricing, or Billing

10.1 Backup Radar reserves the right at any time, and from time to time to modify, discontinue, temporarily or permanently, the Services (or any part thereof) with or without notice.

10.2 Backup Radar reserves the right, at any time, and from time to time, to change its prices and billing methods for the Services, subject to 30 days’ notice from us. Such notice may be provided at any time by posting on the Backup Radar website (www.backupradar.com), the Services itself, or by e-mail to you.

10.3 Backup Radar shall not be liable to you or any third party for any modification, price change, suspension, or discontinuation of the Services.

 

11. Intellectual Property

All right, title, and interest in and to any intellectual property will remain (as between the parties) solely with Backup Radar. All trademarks, service marks, graphics, and logos used in connection with Backup Radar, or the Services are trademarks or registered trademarks of Backup Radar. Other trademarks, Services marks, graphics, and logos used in connection with the Services may be the trademarks of other third parties. Your use of the Service grants you no right or license to reproduce or otherwise use any Backup Radar or third-party trademarks.

 

12. Changes to the Agreement

Backup Radar reserves the right, at its sole discretion, to modify or replace any part of this Agreement. It is your responsibility to check this Agreement periodically for changes. Your continued use of or access to the Services following the posting of any changes to this Agreement constitutes acceptance of those changes. Backup Radar may also, in the future, offer new services and/or features through the Services (including, the release of new tools and resources). Such new features and/or services shall be subject to the terms and conditions of this Agreement.

 

13. General Representation and Warranty

You represent and warrant that (i) your use of the Services will be in strict accordance with the Backup Radar Privacy Policy, with this Agreement, and with all applicable laws and regulations (including without limitation any local laws or regulations in your country, state, city, or other governmental area, regarding online conduct and acceptable content, and including all applicable laws regarding the transmission of technical data exported from Canada or the country in which you reside), and (ii) your use of the Services will not infringe or misappropriate the intellectual property rights of any third-party.

 

14. Limitations

14.1 Backup Radar makes every effort to ensure the Services are made available. However, there will be occasional periods of downtime necessary to perform essential system upgrades and maintenance. We will attempt to provide twelve (12) hours of notice for scheduled downtime, but in some cases, downtime may be unscheduled or beyond our control. There may also be unforeseen incidents that cause the Services to go down for a period of time that are beyond Backup Radar’s control.

14.2 Certain key Backup Radar processes may depend on third-party systems. We are unable to guarantee the availability of third-party systems (e.g. for synchronization functions) and are in no way responsible for any outages.

 

15. Disclaimer of Warranties

You expressly acknowledge and agree that use of the Services are at your sole risk. The Services and any and all related documentation are provided “AS IS” and without warranty of any kind and, TO THE MAXIMUM EXTENT ALLOWED BY APPLICABLE LAW, BACKUP RADAR EXPRESSLY DISCLAIMS ALL WARRANTIES, EXPRESS AND IMPLIED, INCLUDING, BUT NOT LIMITED TO, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE. BACKUP RADAR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE WEBSITE OR SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE WEBSITE OR SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE WEBSITE OR SOFTWARE WILL BE CORRECTED. BACKUP RADAR DOES NOT WARRANT THAT THE SERVER THAT MAKES THE WEBSITE AVAILABLE IS FREE OF VIRUSES OR OTHER COMPONENTS THAT MAY INFECT, HARM, OR CAUSE DAMAGE TO YOUR COMPUTER EQUIPMENT OR ANY OTHER PROPERTY WHEN YOU ACCESS, BROWSE, DOWNLOAD FROM, OR OTHERWISE USE THE SERVICES OR WEBSITE. YOU SPECIFICALLY ACKNOWLEDGE THAT THE SERVICES MAY BECOME DELAYED OR RENDERED USELESS FOR A PERIOD OF TIME DUE TO THE INHERENT PROBLEMS WITH USING THE INTERNET AND ELECTRONIC COMMUNICATIONS, AND YOU SPECIFICALLY ACKNOWLEDGE THAT BACKUP RADAR IS NOT RESPONSIBLE FOR ANY DAMAGE OF ANY TYPE WHATSOEVER FOR ANY DELAYS, DELIVERY FAILURES, OR OTHER PROBLEMS ASSOCIATED THEREWITH. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY YOU. FURTHERMORE, BACKUP RADAR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE WEBSITE OR SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY BACKUP RADAR OR BACKUP RADAR’S AUTHORIZED REPRESENTATIVE SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY. SHOULD THE SOFTWARE PROVE DEFECTIVE, YOU (AND NOT BACKUP RADAR OR BACKUP RADAR’S AUTHORIZED REPRESENTATIVE) ASSUME THE ENTIRE COST OF ALL NECESSARY SERVICING, REPAIR, OR CORRECTION.

 

16. Limitation of Liability

TO THE MAXIMUM EXTENT ALLOWED UNDER APPLICABLE LAW, UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BACKUP RADAR OR ITS DIRECTORS, OFFICERS, EMPLOYEES, OR AGENTS, BE LIABLE TO YOU FOR ANY INCIDENTAL, INDIRECT, PUNITIVE, SPECIAL, OR CONSEQUENTIAL DAMAGES (INCLUDING DAMAGES FOR LOSS OF BUSINESS PROFITS OR REVENUES, BUSINESS INTERRUPTION, LOSS OF BUSINESS INFORMATION, PERSONAL INJURY, OR ANY OTHER PECUNIARY OR OTHER LOSS WHATSOEVER) ARISING OUT OF THE USE, MISUSE, OR INABILITY TO USE THE SERVICES, WEBSITE, OR SOFTWARE OR RELATED DOCUMENTATION, EVEN IF BACKUP RADAR OR BACKUP RADAR’S AUTHORIZED REPRESENTATIVE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. In no event shall Backup Radar’s total liability to you for all damages, losses, and causes of action (whether in contract, tort (including negligence) or otherwise) exceed the amount paid by you for the Services during the three (3) month period prior to the cause of action. Backup Radar shall have no liability for any failure or delay due to matters beyond their reasonable control. The foregoing shall not apply to the extent prohibited by applicable law.

 

17. Indemnification

You agree that you will, at your expense, defend, indemnify, and hold harmless Backup Radar and its affiliates, officers, directors, employees, agents, and attorneys from and against any and all claims, demands, liabilities, costs, expenses (including attorney’s fees), losses, damages, judgments, or settlements arising or resulting from a) any claims, demands, actions, and other proceedings by any party, including any third-party, arising out of or relating to this Agreement; b) your use of the Services, software, website, or any related documentation; c) your use of any third-party’s services or products; d) your collection, distribution, dissemination, sharing, use, or sale of information provided to Service Providers; e) your violation of any local, state, federal, or international laws or breaches of this Agreement; and f) any act or omission by you or your agents, employees, or independent contractors for any services agreed to be performed by any third party.

 

18. Miscellaneous

18.1 This Agreement shall be deemed to be a contract that is made under the laws of the State of Louisiana, U.S.A., and for all purposes shall be interpreted in its entirety in accordance with the laws of said state. No litigation or other claim that is connected in any manner herewith shall be instituted or conducted in any court other than a competent court in the State of Louisiana. By accepting this Agreement, you hereby consent to personal jurisdiction and venue in a competent court in the Parish of Jefferson, State of Louisiana. By accepting this Agreement, you also irrevocably waive and renounce any right that you may have had to institute litigation or a claim of any type whatsoever in any jurisdiction other than in the Parish of Jefferson, State of Louisiana. If any action shall be brought on account of any breach of or to enforce or interpret this Agreement, the prevailing party shall be entitled to recover its costs and reasonable attorneys’ fees.

18.2 If any provision of this Agreement shall be held to be invalid or unenforceable, such provision will be enforced to the maximum extent permissible so as to effect the intent of the parties, and the validity and enforceability of the remaining provisions shall not in any way be affected or impaired thereby.

18.3 This Agreement, including all exhibits and documents directly referenced, constitutes the entire agreement between the parties with respect to the subject matter hereof, and supersedes and replaces all prior or contemporaneous understandings or agreements, written or oral, regarding such subject matter.

18.4 The terms of this Agreement may only be modified by a written amendment signed by an authorized executive of Backup Radar or by the posting by Backup Radar of a revised version Backup Radar reserves the right to modify and update this Agreement without prior notification. If you refuse to access any modifications or updates to this Agreement, Backup Radar reserves the right to immediately terminate this Agreement and your access to Backup Radar’s website.

18.5 Backup Radar has the right to modify and/or update the Services without prior notice.

18.6 The terms of this Agreement are severable. If any term or provision is declared invalid or unenforceable, in whole or in part, that term or provision will not affect the remainder of this Agreement; this Agreement will be deemed amended to the extent necessary to make this Agreement enforceable, valid and to the maximum extent possible consistent with applicable law, consistent with the original intentions of the parties; and the remaining terms and provisions will remain in full force and effect.

18.7 Except where prohibited by applicable law, you waive any right you may have to commence or participate in any class action against Backup Radar related to any claim and, where applicable, you also agree to opt out of any class proceedings against Backup Radar.

18.8 A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, will not waive such term or condition or any subsequent breach thereof.

18.9 Backup Radar may assign its rights under this Agreement without condition. Your rights under this Agreement are not assignable or transferable unless agreed to in advance by Backup Radar in writing.

18.10 This Agreement will be binding upon and will inure to the benefit of the parties, their successors and permitted assigns.

 

Questions or Comments. Should you have any questions or comments regarding this agreement, please contact Backup Radar using the information below.

Backup Radar, L.L.C.
812 Park Avenue
Suite 2E
Mandeville, Louisiana 70448

 

You hereby agree that, in order to utilize the Services, you must accept this Agreement. You hereby agree that you have read this Agreement in its entirety and unconditionally accept its terms.