Terms Of Service for Data Backup Service and Hosted E-Mail Service
This document was last modified on April 4, 2007.
IMPORTANT - READ CAREFULLY! THESE TERMS OF SERVICE ARE IN ADDITION TO THE HIWIRED TERMS OF SERVICE LOCATED AT http://www.hiwired.com/documents/ToS.aspx BY SUBSCRIBING TO THE HIWIRED DATA BACKUP SERVICE, HOSTED EMAIL, OR “CONNECTED ON THE GO EMAIL”, YOU AGREE TO THE TERMS BELOW. IF YOU DO NOT AGREE WITH THESE TERMS, DO NOT PROCEED WITH YOUR SUBSCRIPTION FOR THESE SERVICES.
IF YOU SUBSCRIBE TO HIWIRED’S DATA BACKUP SERVICE, HOSTED EMAIL, OR “CONNECTED ON THE GO” EMAIL SERVICES, YOU WILL LOSE ACCESS TO YOUR STORED DATA AND ALL OF YOUR STORED DATA UPON TERMINATION OF YOUR ACCOUNT. UPON TERMINATION, YOU ACKNOWLEDGE AND AGREE THAT HIWIRED SHALL HAVE THE IMMEDIATE RIGHT WITHOUT LIABILITY OF ANY KIND TO DELETE AND PURGE ALL OF YOUR DATA AND INFORMATION THAT WAS STORED BY HIWIRED AND SUCH DATA AND INFORMATION SHALL BE UNAVAILABLE TO YOU FOR FUTURE USE AND SHALL NOT BE RESTORED IN ANY EVENT.
a. Backup Services. HiWired has partnered with third party providers, Carbonite, Inc., Iron Mountain Information Management, Inc., Lanlogic, Inc. and SwapDrive, Inc. (the “Service Providers”) to provide Data Backup Services, Hosted Email, Hosted File Server, and “Connected On the Go Email” (the “Services”). You agree that the following terms, in addition to the terms found at http://www.swapdrive.com/agreement.asp, http://www.lanlogic.net/terms.asp, http://www.ironmountain.com/user_terms/userterms.asp, and http://www.carbonite.com/TermsOfUse.aspx.
b. Acceptance of Applications. HiWired and the Service Providers reserve the right to reject any application for any reason. You agree that neither HiWired nor the Service Providers shall be liable for any loss or damage that may result from such rejection. HiWired reserves the right to change fees, surcharges, renewal fees or to institute new fees at any time, for any reason, at its sole discretion. Your requested Services will not commence until HiWired receives actual payment of the initial fee.
c. Representations and Warranties. You represent and warrant that (i) neither the Services requested nor the manner in which it is directly or indirectly used shall infringe the legal rights of any third party; and (ii) all personal and identifying information provided by you is and shall remain accurate.
d. Fees and Payment. You agrees that all payment obligations relating to any Services are exclusively between you and HiWired. Each subscription for HiWired Services shall automatically renew on a monthly basis until HiWired is notified, via phone or email, of your request to cancel service. Any failure to follow all required procedures shall be at your sole risk.
e. Cancellation; Reinstatement. In the event of a chargeback by a credit card company (or similar action by another payment provider allowed by HiWired) in connection with the payments of your fees, You agree and acknowledge that HiWired or the Service Providers may the immediately terminate any and all Services being provided to you.
f. Required Information. As part of the Services, you will be required to provide certain information, including without limitation contact information such as your full name, postal address, email address, telephone number and fax number, if available ("Personal Information"). You agree to update this Personal Information promptly as needed to keep it current, complete and accurate, and to add such additional information as HiWired or the Service Providers may reasonably require from you.
YOU AGREE THAT YOUR WILLFUL PROVISION OF INACCURATE OR UNRELIABLE INFORMATION, WILLFUL FAILURE PROMPTLY TO UPDATE INFORMATION PROVIDED TO HIWIRED OR THE SERVICE PROVIDERS OR FAILURE TO RESPOND FOR MORE THAN FIFTEEN (15) CALENDAR DAYS TO INQUIRIES CONCERNING THE ACCURACY OF CONTACT DETAILS ASSOCIATED WITH ANY SERVICES SHALL CONSTITUTE A MATERIAL BREACH JUSTIFYING CANCELLATION OF SUCH SERVICES.
g. Breach and Revocation. Each of HiWired and the Service Providers reserves the right to suspend, cancel, transfer or modify any Services immediately: (i) in the event you breach any provision of this Agreement; or (ii) in response to an order from a court of competent jurisdiction, or arbitration award.
h. Disclaimer of Liability. To the extent permitted by law, you agree that neither HiWired nor the Service Providers, nor any of their respective suppliers or service providers, has any liability to you for any loss you may incur in connection with the processing of any Services, or the failure by your agent to pay either the initial fee or renewal fee.
i. Indemnity. In addition to any indemnification obligation that you may owe to HiWired hereunder, you agree to indemnify, keep indemnified and hold HiWired and the Service Providers, and their respective directors, officers, employees and agents, harmless from and against all and any and all claims, damages, liabilities, costs and expenses (including reasonable legal fees and expenses) arising out of or relating to your use of the Services and the data and information provided by you as part of the Services to HiWired and the Service Providers.
YOU AGREE THAT THE SERVICES ARE PROVIDED ON AN "AS IS," "AS AVAILABLE" BASIS. HIWIRED, THE SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE SUPPLIERS AND SERVICE PROVIDERS EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. HIWIRED, THE SERVICE PROVIDERS AND EACH OF THEIR RESPECTIVE SUPPLIERS AND SERVICE PROVIDERS MAKE NO WARRANTY THAT THE SERVICES WILL MEET YOUR REQUIREMENTS, OR THAT THE SERVICES WILL BE UNINTERRUPTED, TIMELY, SECURE, OR ERROR FREE; NOR DOES HIWIRED, THE SERVICE PROVIDERS OR ANY OF THEIR RESPECTIVE SUPPLIERS OR SERVICE PROVIDERS MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM THE USE OF THE SERVICES.
NEITHER HIWIRED, THE SERVICE PROVIDERS NOR ANY OF THEIR RESPECTIVE SUPPLIERS OR SERVICE PROVIDERS WILL BE LIABLE FOR ANY INDIRECT, SPECIAL, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND (INCLUDING LOST PROFITS) REGARDLESS OF THE FORM OF ACTION WHETHER IN CONTRACT, TORT (INCLUDING NEGLIGENCE), OR OTHERWISE, EVEN IF ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU AGREE THAT HIWIRED'S, THE SERVICE PROVIDERS', AND THEIR RESPECTIVE SUPPLIERS' AND SERVICE PROVIDERS', ENTIRE AGGREGATE LIABILITY, AND YOUR EXCLUSIVE REMEDY, WITH RESPECT TO ANY DATA BACKUP SERVICES PROVIDED UNDER THIS AGREEMENT AND ANY BREACH OF THIS AGREEMENT IS SOLELY LIMITED TO THE AMOUNTS PAID FOR SUCH SERVICES. BECAUSE SOME STATES DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR CONSEQUENTIAL OR INCIDENTAL DAMAGES, IN SUCH STATES, LIABILITY IS LIMITED TO THE EXTENT PERMITTED BY LAW.