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Terms Of Service

This document was last modified on June 30, 2008.

HIWIRED SERVICES (THE "SERVICES") ARE OWNED AND OPERATED BY HIWIRED, INC. ("HIWIRED"), A DELAWARE CORPORATION, AND ARE PROVIDED TO YOU ("YOU") UNDER THE TERMS AND CONDITIONS OF THESE HIWIRED TERMS OF SERVICE (THIS "AGREEMENT"), WHICH INCLUDES HIWIRED’S PRIVACY POLICY AND END USER LICENSE AGREEMENT, AVAILABLE THROUGH THE HYPERLINKS SET FORTH BELOW AND INCORPORATED HEREIN BY REFERENCE. BY COMPLETING THE ELECTRONIC ACCEPTANCE PROCESS AND CHECKING THE "I AGREE" CHECKBOX, YOU ARE INDICATING YOUR AGREEMENT TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT. YOU REPRESENT AND WARRANT THAT YOU: (I) ARE AT LEAST 18 YEARS OF AGE AND AUTHORIZED TO SIGN FOR AND BIND THE CONTRACTING PARTY AND (II) AGREE TO BE BOUND BY ALL OF THE TERMS AND CONDITIONS OF THIS AGREEMENT, INCLUDING THE DISCLAIMERS AND LIMITATIONS OF LIABILITY SET FORTH IN SECTIONS 9 AND 10 BELOW. IF YOU DO NOT AGREE, DO NOT CONTINUE WITH THE ACCEPTANCE PROCESS.

1. GENERAL

You are deemed to have accepted this Agreement upon the earlier of: (a) your submission of an online or telephone order for the Services; (b) your electronic agreement to this Agreement during registration or in the course of initiating a support session whether online or by telephone; (c) your use of the Services; or (d) your download and/or retention of the HiWired software we make available to you. This Agreement is made up of these terms, our End User License Agreement, available at http://www.hiwired.com/documents/eula.aspx, and our Privacy Policy available at http://www.hiwired.com/documents/privacy.aspx, any other terms set forth on the HiWired website (http://www.hiwired.com) (the "Website") and, if you obtain certain of our managed services, the terms of service of one or more of our third party service providers, all of which are incorporated herein by reference.

2. DEFINITION OF SERVICES

For purposes of this Agreement, the term "Services" shall mean the HiWired services (whether provided under the HiWired, TechCare or eTechmate brandname or any other brandname), including all HiWired and third party software made available to you, technical support, managed services, email and other features, and other products and services provided by HiWired (or third party vendors) under the service option that you have selected. The Services may be referred to herein as: "Remote Support Service," or "Remote Personal Technology Support." "Software" shall mean HiWired’s PC Check & Connect ("PC3") software and other third party diagnostic or other tools that may be downloaded and used in the provision of the Services.

3. AUTHORIZED USER, USE, AND RESPONSIBILITIES

3.1 You represent and warrant that the information you supply to us is correct and complete. You understand that HiWired relies on the information you supply and that providing false or incorrect information may result in Services being withheld or delayed or the suspension or termination of your Services or customer account. You shall indemnify and defend HiWired from any harm or damages that result from any provision by you of false or incorrect information. You shall promptly notify HiWired whenever your personal or billing information changes (including for example, your name, address, telephone number, and credit card number and expiration date).

3.2 You shall be responsible for the Services and Software provided through your customer account with HiWired, including any secondary accounts or sub-accounts registered to your primary account. You understand this means that you accept full liability and responsibility for the actions of anyone who uses Services or Software via your account, or any secondary accounts, with or without your permission. You shall indemnify and defend HiWired for any harm or damages that result based on use of the Services or Software via your account, or any secondary accounts.

3.3 If you select a service plan that includes a pre-determined allocation of Services (for example, pre-purchasing a "Help Sessions 4-Pack" for Remote Personal Technology Support), your unused allotment of Services may remain in your customer account for the term of such Services. Please refer to the service description for additional information

3.4 You shall not resell or distribute the Services, or engage in similar activities, whether commercial or non-commercial, as determined solely by HiWired.

3.5 You shall not cause HiWired or any of its employees or third party vendors to participate in, or contribute towards, any activity that is illegal under any applicable federal, state or local law, rule or regulation, and you shall indemnify and defend HiWired from and against any harm or damages caused by any illegal activity in which you may engage.

4. PRIVACY POLICY

HiWired shall treat your personal information in accordance with its current http://www.hiwired.com/documents/privacy.aspx, as amended from time to time in the sole discretion of HiWired.

5. AVAILABILITY OF SERVICE

5.1 The Services and Software you select may not be available at all times, and may not be available in the format generally marketed, and some personal computers may not be capable to receive the Services even if initial testing showed that such computers were capable. For Remote Personal Technology Support, we shall qualify your line for the maximum line rate available to your location based on our standard line qualification procedures.

5.2 HiWired, its suppliers and licensors may, at any time, without notice or liability to you, restrict in whole or in part the use of the Services or the Software or limit availability in order to perform maintenance activities, to maintain session control or for any other purpose.

6. SOFTWARE LICENSES AND THIRD PARTY SERVICES

6.1 In connection with the Services, we may provide to you, via download, CD, other media, or other delivery methods, certain software which is owned by HiWired or its third party licensors, providers and suppliers (collectively, "Third Party Licensors"), and which may be provided to you for free or for a fee, including client and/or network security software. We reserve the right to update or change the Software from time to time and, if you wish to continue receiving the Services, you shall cooperate in performing such steps as may be necessary to install any updates or upgrades to the Software. You shall use the Software only as part of or for use with the Service and for no other purpose.

6.2 The Software may be accompanied by one or more end user license agreements from HiWired, its Third Party Licensors or other third parties. Your use of the Software is governed by the terms of each applicable end user license agreement and by this Agreement, where applicable. All third party Software and services are licensed or provided to you by the respective owners or licensees of such Software or services. You must agree to the terms and conditions set forth by such owners or licensees before installing third party Software, whether or not HiWired assists you in the acquisition, installation, and/or use of third party Software. HiWired does not license third party Software to you or make any representation or warranty regarding the third party Software. By accepting the Services and downloading the Software, you designate HiWired technicians as your agents, and hereby authorize such technicians, to accept the terms of such third party Software end user license agreements on your behalf and you agree to be bound by the terms of such agreements.

6.3 If you subscribe to or otherwise use any third party services offered by or through HiWired, your use of any such services is subject to such third party service provider’s terms of service. You shall comply with all third party service provider’s terms of service and acknowledge and agree that such third party service provider is solely responsible for delivery of its service(s) and Software to you and your access to and use of such services and Software. Third party services include, but are not limited to, technical support, portal, training, data back-up, hosted e-mail and storage services that HiWired may elect to make available from time to time. Violation of such third party service providers terms of service may, in HiWired's sole discretion, result in the termination of your customer account and use of Service and Software.

6.4 Without limiting the foregoing, IF YOU SUBSCRIBE TO HIWIRED’S DATA BACKUP SERVICE, HOSTED EMAIL, "CONNECTED ON THE GO" EMAIL SERVICES, OR ANY OTHER SERVICES THAT INCLUDE THESE SERVICES YOU WILL LOSE ACCESS TO ALL OF YOUR STORED DATA UPON TERMINATION OF YOUR ACCOUNT OR YOUR SERVICE TERM. 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.

HiWired has relationships with third party service providers, Carbonite, Inc. and Lanlogic, Inc. (the "Service Providers") to provide Data Backup Services, Hosted Email, Hosted File Server, and "Connected On the Go Email" (the "Managed Services"). In addition to the terms set forth herein, if you subscribe to such services, you are also accepting such Service Providers terms of service and each Service Provider shall be deemed to be a third party beneficiary of this Agreement for purposes of enforcing its rights with respect to its respective terms of service. A copy of Carbonite, Inc.’s terms of service are annexed hereto.

7. TERM AND TERMINATION

7.1 Effective Date and Term. This Agreement goes into effect upon your acceptance of this Agreement as set forth in Paragraph 1 and shall continue until terminated by either party as permitted by this Agreement.

7.2 Termination of Service.

7.2.1 Pay-as-you-go or Subscription Service. If you are a pay-as-you-go or subscription Service customer, either you or HiWired may terminate this Agreement without cause by giving notice to the other party. Termination by you shall be effective at the end of the current billing cycle, subject to your fulfillment of any minimum service commitment related to the Service you have purchased or subscribed to. Activation or set-up fees paid at the initiation of your Services, if any, shall not be refundable. Termination by HiWired shall be effective upon HiWired’s notice to you, except as otherwise provided in this Agreement. In the event of termination by HiWired, for any reason, you shall be required to pay the remaining balance of the charges applicable to your Services through the effective date of termination. You acknowledge that any Software that you may install as part of the Services may cease to operate, update or function properly after termination of any subscription.

7.2.2 Termination and/or Suspension by HiWired. If, in the sole discretion of HiWired: (a) you fail to pay any amount due for the Services or Software, (b) you are in breach of any of the terms of this Agreement or any Third Party Licensor agreement (including but not limited to, all HiWired and its Third Party Licensors’ and Service Providers policies regarding abuse and acceptable use of the Services and the Software and all end user license agreements); (c) you are abusive or offensive in your interactions with HiWired personnel; (d) you are engaged in unlawful activities or your use of the Services or the Software is otherwise prohibited by law or is disruptive to, adversely impacts or causes a malfunction to the Services or the Software, HiWired's network or a Third Party Licensors’ or Service Providers’ network, or the use and enjoyment of other users; (e) HiWired receives an order from a court to terminate your Services; (f) HiWired for any reason ceases to offer the Services or the Software; or (g) you are no longer a HiWired customer, then HiWired at its sole election may terminate or suspend your Services immediately without notice.

7.2.3 Terminated Account. In the event your Services are suspended or terminated, HiWired, in its sole discretion, shall have the right refuse to accept any future request for Services, renewal or re-subscription.

8. PRICING AND PAYMENT

8.1 Pricing and Fees. HiWired fees and charges for the Services you select are supplied to you during the ordering process and are available on the HiWired Website unless otherwise provided for in this Agreement. You agree to pay the charges applicable to the Services you select, as well as any applicable taxes and other charges, including but not limited to activation fees, minimum service fees, no-show fees, fail to cancel fees, termination fees, set-up fees and other nonrecurring charges. You also agree to pay any additional charges or fees applied to your billing account for any reason, including but not limited to, interest, and charges due to insufficient credit or insufficient funds. Set up fees, activation fees, installation fees and other non-recurring fees, if applicable, shall be included in your first bill. Monthly recurring charges (subscription plans) shall be billed one month in advance; usage charges, if applicable, shall be billed in arrears, and pre-purchase plans shall be billed in advance, if applicable. HiWired or its agent shall bill you directly, or charge your credit card, as you request and as approved by HiWired. HiWired does not accept debit cards for payment of any charges or fees.

8.2 Discontinuation of Service for Nonpayment. As provided in Section 7.2.2. hereof, Service to you may be denied or discontinued without notice at any time if your credit card provider denies or discontinues providing credit to you for any reason, or you fail to make payment when due or provide us with a new credit card or credit card expiration date before or at the time the existing one expires.

8.3 Late Fees. If any portion of your bill is not paid by the due date, HiWired shall have the right to charge you a late fee on unpaid balances and may also terminate or suspend your Services without notice. The late fee shall be the lesser of one and one-half percent (1.5 %) per month, or the highest rate permitted by law. In the event HiWired utilizes a collection agency or resorts to legal action to recover monies due, you shall reimburse HiWired for all expenses incurred to recover such monies, including reasonable attorneys' fees.

8.4 Local telephone, Toll and Long Distance Charges. Whether you are accessing the Services from your home or away from your home, you are responsible for all telephone charges.

8.5 Service Without Resolution. HiWired shall use commercially reasonable efforts to troubleshoot, analyze, assess, correct or otherwise fix your computer, network or personal technology problem. If HiWired is unable to resolve your technology problem, you shall remain liable for all Services charges.

8.6 Unable to Create Online Connection. HiWired may not charge you if HiWired cannot connect with your computer and is therefore unable to provide remote computer support service. HiWired reserves the right to charge you an additional service fee in the event we assist you connecting your computer with the Internet.

8.7 All HiWired subscription Services require a minimum commitment as indicated on the HiWired Website under Pricing. Once the minimum commitment is met, HiWired subscription services shall automatically renew for the same period of time as the original commitment unless HiWired is notified, via phone or email, of your request to cancel the applicable Services. Any failure to follow all required procedures shall be at your sole risk. Each HiWired subscription shall be used by you only on one personal computer and such subscription shall not be transferred by you to any other personal computer or party.

8.8 HiWired support sessions may have a time limit as indicated in the product description and/or on the receipt. Support beyond this time limit may incur additional charges or fees if you choose to continue.

9. LIMITATIONS ON USE OF THE SERVICES

9.1 You agree that your use of the Services, Software and the Internet is your sole responsibility, is solely at your own risk, and is subject to all applicable local, state, national and international laws and regulations.

9.2 You agree that the Internet is not owned, operated or managed by, or in any way affiliated with HiWired and HiWired is not responsible and has no control over the information or materials accessible via the Internet through use of the Services or the Software. You further agree that HiWired does not own or control all of the various facilities and communications lines through which Services may be provided, nor does HiWired guarantee access to or through websites, servers or other facilities on the Internet, whether or not such facilities are owned or controlled by HiWired or its Third Party Licensors or Service Providers.

9.3 You agree that HiWired cannot and does not guarantee or warrant that data and Software available for downloading through the Services shall be free of defects, infection or viruses, worms, Trojan horses or other code that manifest contaminating, malicious or destructive properties. You are responsible for implementing adequate procedures to satisfy your particular requirements for accuracy of data input and output and for maintaining a means external to the Services for the reconstruction of any lost data.

9.4 You agree that the Internet is not a secure network and that third parties may be able to intercept, access, use, or corrupt the information you transmit or receive over the Internet. HiWired is not liable for invalid destinations, transmission errors, or corruption or security of your data.

9.5 You are not authorized to use any HiWired name, logo or trade or service mark as a hypertext link to any HiWired Web site or in any advertising, publicity or in any other commercial manner without the prior written consent of HiWired. You understand that your ability to link to a Web site through the Services does not, in any way, represent or imply HiWired's approval of, or its determination of the quality of that product or service, and that links are provided for your convenience only. The links provided through the Services are maintained by their respective organizations, which are solely responsible for their content.

10. LIMITATION OF LIABILITY AND DISCLAIMER OF WARRANTIES

10.1 IN NO EVENT SHALL HIWIRED, ITS OFFICERS, DIRECTORS, EMPLOYEES, STOCKHOLDERS, SUBSIDIARIES, ATTORNEYS OR AFFILIATES, OR ITS THIRD PARTY LICENSORS OR SERVICE PROVIDERS BE LIABLE FOR: (A) ANY DIRECT, INDIRECT, SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, INCLUDING WITHOUT LIMITATION, LOST PROFITS OR LOSS OF REVENUE OR DAMAGE TO DATA ARISING OUT OF THE USE, PARTIAL USE OR INABILITY TO USE THE SERVICES, THE SOFTWARE OR YOUR DATA, REGARDLESS OF THE TYPE OF CLAIM OR THE NATURE OF THE CAUSE OF ACTION, INCLUDING WITHOUT LIMITATION, THOSE ARISING UNDER CONTRACT, TORT, NEGLIGENCE OR STRICT LIABILITY, EVEN IF HIWIRED OR ITS THIRD PARTY LICENSORS OR SERVICE PROVIDERS HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH CLAIM OR DAMAGES, OR (B) ANY CLAIMS AGAINST YOU BY ANY THIRD PARTY. THE MAXIMUM CUMULATIVE LIABILITY OF HIWIRED TO YOU UNDER THIS AGREEMENT IS LIMITED TO THE TOTAL AMOUNTS PAID BY YOU DURING THE SIX (6) MONTHS IMMEDIATELY PRECEDING ANY CLAIM. YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE SERVICES PROVIDED HEREUNDER.

10.2 THE REMEDIES EXPRESSLY SET FORTH IN THIS AGREEMENT ARE YOUR SOLE AND EXCLUSIVE REMEDIES. YOU MAY HAVE ADDITIONAL RIGHTS UNDER CERTAIN LAWS (SUCH AS CONSUMER LAWS), WHICH DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, OR THE EXCLUSION OR LIMITATION OF CERTAIN DAMAGES. IF THESE LAWS APPLY, OUR EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU.

10.3 HIWIRED RESERVES THE RIGHT TO PURSUE ANY AND ALL LEGAL AND EQUITABLE CLAIMS AGAINST YOU PERTAINING TO YOUR USE OR MISUSE OF THE SERVICES OR THE SOFTWARE OR FOR YOUR BREACH OF THE AGREEMENT, INCLUDING ANY POLICIES, TERMS OF SERVICE OR END USER LICENSE AGREEMENTS RELATING TO THE SERVICES OR THE SOFTWARE.

10.4 Notwithstanding any language to the contrary in this Agreement, the Services and the Software are provided to you "AS IS" and "AS AVAILABLE" and without any warranty from HiWired of any kind. HIWIRED MAKES NO REPRESENTATIONS OR WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED (EITHER IN FACT, STATUTORY OR BY OPERATION OF LAW) WITH RESPECT TO THE SERVICES OR THE SOFTWARE, INCLUDING, BUT NOT LIMITED TO, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, NON-INFRINGEMENT, MISAPPROPRIATION OF INTELLECTUAL PROPERTY RIGHTS OF A THIRD PARTY, SUITABILITY ACCURACY, SECURITY, NON-INTERFERENCE, COMPATIBILITY OF COMPUTER SYSTEMS, INTEGRATION, AND THOSE ARISING FROM COURSE OF DEALING, COURSE OF TRADE, OR ARISING UNDER STATUTE, ALL OF WHICH ARE EXPRESSLY DISCLAIMED. NO ADVICE, SUPPORT OR INFORMATION DELIVERED BY HIWIRED OR ITS REPRESENTATIVES TO YOU SHALL CREATE ANY WARRANTY.

10.5 HIWIRED DOES NOT WARRANT THAT THE SERVICES OR THE SOFTWARE PROVIDED BY HIWIRED HEREUNDER SHALL PERFORM AT A PARTICULAR SPEED, BANDWIDTH OR DATA THROUGHPUT RATE, OR SHALL BE UNINTERRUPTED, ERROR-FREE, SECURE, OR FREE OF VIRUSES, WORMS, OR THE LIKE. HIWIRED SHALL NOT BE LIABLE FOR LOSS OF YOUR DATA OR DAMAGES TO YOUR EQUIPMENT. HIWIRED MAKES NO WARRANTY REGARDING ANY TRANSACTIONS EXECUTED USING THE SERVICES, THE SOFTWARE OR THE INTERNET. HIWIRED MAKES NO WARRANTY REGARDING THE CONTENT AND INFORMATION ACCESSED BY USING THE SERVICES OR ANY LINKS DISPLAYED. YOU EXPRESSLY ASSUME ALL RISK AND RESPONSIBILITY FOR USE OF THE SERVICES, THE SOFTWARE AND THE INTERNET GENERALLY. DO NOT USE THE SERVICES OR THE SOFTWARE IN ANY HIGH RISK ACTIVITIES WHERE DAMAGE OR INJURY TO PERSON, PROPERTY, ENVIRONMENT, OR BUSINESS MAY RESULT IF AN ERROR OCCURS.

10.6 ALL LIMITATIONS AND DISCLAIMERS STATED HEREIN ALSO APPLY TO HIWIRED’S THIRD PARTY LICENSORS AND SERVICE PROVIDERS, AS THIRD PARTY BENEFICIARIES OF THIS AGREEMENT.

11. INDEMNIFICATION

You shall defend, indemnify and hold harmless HiWired, its Third Party Licensors and Service Providers from and against all liabilities, damages, costs and expenses, including reasonable attorney's fees, relating to or arising from: (1) your breach of this Agreement; (2) your breach of any agreement with a Third Party Licensor or Service Provider; (3) HiWired’s access to or use of Third Party Licensor Software on your behalf; (4) your use of the Services or the Software; (5) violation of applicable laws or regulations; (6) your placement or transmission of any message, information, software or other materials on the Internet; (7) your negligent acts, errors, or omissions; (8) injuries to or death of any person and for damages to or loss of any property, which may in any way arise out of, result from or are in connection with this Agreement the Services, Software or the Internet, except to the extent that such liabilities arise from the gross negligence or willful misconduct of HiWired; or (9) claims for infringement of any intellectual property rights arising from the use of the Services, Software, or the Internet.

12. NOTICES

12.1 Notices required under this Agreement by you shall be provided to the Customer Service Department reachable via email at info@hiwired.com or fax at 1-781-719-1897. Notices by HiWired to you shall be deemed given: (a) when sent to your registered email address, or (b) when deposited in the United States mail addressed to you at last-known address or (c) when hand delivered to your home, as applicable.

12.2 With regard to electronic communications, you and HiWired further agree that: (a) the User ID and/or alias of a sender, contained in an electronic communication ("email"), is legally sufficient to verify the sender's identity and the authenticity of the communication; (b) an email sent containing your User ID and/or alias establishes you as its originator and has the same effect as a document with your written signature on it; and (c) an email or any computer printout of it is a valid proof of the validity of the original content of the electronic communication.

13. GENERAL PROVISIONS

13.1 The parties agree that their respective rights, obligations and duties which by their nature extend beyond the termination of this Agreement shall survive any termination and shall remain in effect for a period of one (1) year thereafter or the period specified in this Agreement, if longer.

13.2 HiWired shall not be liable for delays, damages or failures in performance due to causes beyond its reasonable control, including, but not limited to, acts of a governmental body, acts of God, acts of third parties, fires, floods, strikes or other labor-related disputes, of other things we do not control, or an inability to obtain necessary equipment or services.

13.3 You shall not assign or otherwise transfer this Agreement in whole or in part, including the Software, or your rights or obligations under it. Any attempt to do so shall be null and void. We may assign all or any part of this Agreement without notice and you agree to make all subsequent payments as directed.

13.4 You and HiWired agree that the substantive laws of the Commonwealth of Massachusetts, without reference to its principles of conflicts of laws, shall be applied to govern, construe and enforce all of the rights and duties of the parties arising from or relating in any way to the subject matter of this Agreement. YOU AND HIWIRED CONSENT TO THE EXCLUSIVE PERSONAL JURISDICTION OF AND VENUE IN A COURT LOCATED IN SUFFOLK COUNTY, MASSACHUSETTS FOR ANY SUITS OR CAUSES OF ACTION CONNECTED IN ANY WAY, DIRECTLY OR INDIRECTLY, TO THE SUBJECT MATTER OF THIS AGREEMENT OR TO THE SERVICES OR SOFTWARE. Except as otherwise required by law, including Massachusetts laws relating to consumer transactions, any cause of action or claim you may have with respect to the Services or Software must be commenced within one (1) year after the claim or cause of action arises or such claim or cause of action is barred. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

13.5 HiWired's failure at any time to insist upon strict compliance with any of the provisions of this Agreement in any instance shall not be construed to be a waiver of such terms in the future. If any provision of this Agreement is determined to be invalid, illegal or unenforceable, the validity, legality, and enforceability of the remaining provisions shall not in any way be affected or impaired thereby, and the unenforceable portion shall be construed as nearly as possible to reflect the original intentions of the parties.

13.6 This Agreement, the policies and terms referenced in paragraph 1 hereof and all other policies posted on the Website, which are fully incorporated into this Agreement by reference, constitute the entire agreement between you and HiWired with respect to the subject matter hereto and supersedes any and all prior or contemporaneous agreements whether written or oral. Any changes by you to this Agreement, or any additional or different terms in your purchase orders, acknowledgements or other documents, written or electronic, are void.

13.7 Satisfaction Statement. If you are not completely satisfied with any HiWired Service , HiWired will, upon your written request, provide you with two help sessions or a refund of the money you have paid to HiWired so long as HiWired receives such written request within seven (7) calendar days ("Notice Period") of such subscription setup or single incident session. If you do not notify us within such Notice Period, HiWired may provide you with a pro-rated refund if you have subscribed and paid for the Services for a term of not less than four (4) months and you paid HiWired: (i) on a monthly basis and you cancel your subscription upon thirty (30) days prior written notice to HiWired; or (ii) up front for a one (1) year subscription term and you cancel your subscription upon thirty (30) days prior written notice to HiWired.

SERVICE PROVIDER TERMS OF SERVICE

CARBONITE (SM) PRODUCTS AND SERVICES TERMS AND CONDITIONS OF USE

Updated and effective as of June 12, 2008.

READ THIS AGREEMENT CAREFULLY.

Carbonite, Inc. is willing to provide Carbonite Products or Services to you only if you accept all of the following terms and conditions, the Carbonite Privacy Policy, as well as any operating rules, policies, price schedules, and other supplemental documents Published by Carbonite from time to time, all of which are incorporated herein by reference (collectively, "Terms and Conditions of Use" or "this Agreement").


1. Definition of Terms

As used in these Terms and Conditions of Use:

  1. "Backup Data" includes any data you back up through Use of the Carbonite Products or Services and any related data that are in the possession of Carbonite or Carbonite Affiliates.
  1. "Carbonite," "we," "us," or "our" mean Carbonite, Inc. and its subsidiaries.
  1. "Carbonite Affiliate" means persons or entities who have provided products, licenses, or services to Carbonite and persons or entities with which Carbonite has entered into an agreement to sublicense or to provide Carbonite Products or Services to users.
  1. "Carbonite Products or Services" means data backup services, websites (including without limitation, www.Carbonite.com), all other documentation, features, tools, Carbonite Software, and any other products or services provided by Carbonite or its authorized agents, distributors, and licensees.
  1. "Carbonite Software" means software provided to you or for your Use by Carbonite.
  1. "Computer" means a desktop or laptop computer, network device, and any storage device attached to them in any fashion.
  1. "Personal Information" any information or set of information that identifies or could readily be used by Carbonite or its agents to identify an individual. Personal information does not include information that is encoded or anonymized, or publicly available information that has not been combined with non-public Personal Information.
  1. To "Publish" documents or information means to provide to or make them accessible to you by mailing, emailing, desktop messaging, faxing, or delivering them to you and/or by posting them to www.Carbonite.com or any other website you visit to register for, subscribe to, license, buy, or Use Carbonite Products or Services.
  1. To "Use" Carbonite Products or Services means each time you visit a Carbonite website, register with Carbonite, download Carbonite Software, use Carbonite Software to encrypt or back up data, view the status of your Backup Data, store or restore Backup Data, or request support.
  1. "You," "yourself", "user," "subscriber," "client," and "customer" refer to the individual or legal entity registering for or using the Carbonite Products or Services.
2. Acceptance of Terms and Conditions of Use; Modification; Cancellation

By registering to Use Carbonite Products or Services, and each time you Use a Carbonite Product or Service, you affirm your acceptance of these Terms and Conditions of Use and agree to comply with them now and throughout the period of your Use of the Carbonite Products or Services and thereafter. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use Carbonite Products or Services.

Carbonite may change the Terms and Conditions of Use at any time, without prior notice to you, and in its sole discretion. The new or modified Terms and Conditions of Use will be effective immediately upon posting on our website at www.Carbonite.com.

If you do not agree to be bound by Carbonite’s Terms and Conditions of Use as Published by Carbonite from time to time, your sole and exclusive remedy is to discontinue using Carbonite Products or Services.

If you wish to cancel your Carbonite license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) calendar days after your next Use of a Carbonite Product or Service following the change in the Terms and Conditions of Use. For this type of cancellation you will receive a pro-rata refund based on your date of notice. You acknowledge and agree that if you do elect to cancel your license within this specified period after a change in the Terms and Conditions of Use, or if you cancel your license or fail to renew an expired or terminated license for any reason, Carbonite may delete any information that Carbonite has obtained through your Use of Carbonite Products or Services, including without limitation, your Backup Data, which means that Carbonite will not have any Backup Data available for your Use or for return to you.


3. Requirements for Registration or Use of Carbonite Products

Carbonite Products or Services are intended and offered only for lawful Use by individuals or organizations with the legal capacity and authority under applicable law to enter into a contract. Carbonite does not offer Carbonite Products or Services to minors or where prohibited by law. By registering for and/or by Using Carbonite Products or Services, you represent and warrant that you have the legal capacity and authority to enter into a binding agreement to adhere to the Carbonite Terms and Conditions of Use and that you will Use Carbonite Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If you are Using Carbonite Products or Services on behalf of an entity or organization, you warrant, represent, and covenant to Carbonite that you are duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them.

You agree to provide accurate and complete information when you register for a Carbonite Product or Service and you agree to keep such information accurate and complete during the entire time that you Use Carbonite Products or Services.

We may ask you from time to time to establish a user name or password to access or Use the Carbonite Products or Services. You are solely responsible for any consequences arising in whole or in part out of your failure to maintain the confidentiality of your username and/or password.


4. Lawful Use of Carbonite Products or Services

You may not Use Carbonite Products or Services for any unlawful purpose.

Without limiting the foregoing:

  1. Carbonite Products or Services may not be Used to store, backup, or distribute child pornography and may not be Used in violation of U.S. export control laws or the export or import regulations of other countries. You agree to comply strictly with all such laws and regulations and acknowledge that you have the responsibility to obtain licenses to export, re-export, or import as may be required.
  1. You may not Use Carbonite Products or Services if you are a citizen, national, or resident of, or are under control of, the government of Cuba, Iran, Sudan, Libya, North Korea, Syria, or any other country to which the United States has prohibited export. Each time you Use Carbonite Products or Services you represent, warrant, and covenant that:

    ( You are not a citizen, national, or resident of, nor under the control of, any such country to which the United States has prohibited export; ( You will not download or otherwise export or re-export the Carbonite Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; ( You are not listed on the U.S. Department of Treasury’s Lists of Specially Designated Nationals, Specially Designated Terrorists, and Specially Designated Narcotic Traffickers, the U.S. Department of State’s List of Statutorily Debarred Parties, or the U.S. Department of Commerce’s Denied Persons List, Entity List, or Unverified List Table of Denial Orders; ( You will not download or otherwise export or re-export the Carbonite Software, directly or indirectly, to persons on the above mentioned lists; ( You will neither Use nor allow the Carbonite Software to be Used for, any purposes prohibited by United States federal or state law, including, without limitation, for the development, design, manufacture or production of nuclear, chemical, or biological weapons of mass destruction; ( The Carbonite Software will not be exported, directly, or indirectly, in violation of these laws, nor will the Carbonite Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; and ( You are not using or permitting others to Use Carbonite Products or Services to create, store, backup, distribute, or provide access to child pornography.

5. Changes to the Carbonite Products or Services

Carbonite has the right at any time to change, modify, add to, discontinue, or retire any Carbonite Product or Service and any aspect or feature of the Carbonite Products or Services including, but not limited to, the software, hours of availability, equipment needed for access or Use, the types of files that are backed-up (not every file on your computer is backed-up), the maximum disk space that will be allotted on Carbonite servers on your behalf either cumulatively or for any particular service, or the availability of Carbonite Products or Services on any particular device or communications service. Carbonite has no obligation to provide you with notice of any such changes except to post them at www.Carbonite.com. It shall be your responsibility to check our website periodically to inform yourself of any such changes. From time to time, Carbonite may issue new releases, revisions, or enhancements to the Carbonite Products or Services available to you free of charge or for a fee. New releases, revisions or enhancements may be licensed, downloaded, and installed only to the extent that you hold a valid license to Use the Carbonite Products or Services being updated or upgraded, and you may Use them only in accordance with the then-current Terms and Conditions of Use and any additional license terms that may accompany them. Carbonite may automatically update Carbonite Products or Services you have installed on your computer without your prior consent. If any automatic updates involve the payment of additional fees, we will provide you with the opportunity to approve such fees prior to the new functionality being enabled. If you fail or refuse to approve such fees, Carbonite may, in its sole discretion, terminate your current license, continue to support your current Carbonite Products or Services without the automatic update, or replace your Carbonite Products or Services with other Carbonite Products or Services. If Carbonite terminates your current license, then Carbonite will refund, on a pro-rata basis based on the remaining term of the current license, any fees related to the period during which you will not have access to your Carbonite Products or Services.


6. Carbonite License to You; Renewals, Modifications, Limits
  1. Scope of License. Carbonite grants you a personal, non-exclusive, non-transferable limited and revocable license to install the Carbonite Software only on one computer for which you have paid the applicable fees and taxes and from which you are licensed to access the Carbonite Products or Services, and to Use the Carbonite Products or Services for the sole and exclusive purposes of connecting to and using the Carbonite Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use, provided you comply and remain in compliance with this Agreement. We reserve all other rights to the Carbonite Products or Services.

    You may Use a license for the Carbonite Products or Services with only one computer at a time. You may transfer your license to another computer in the event that you cease to use the computer on which Carbonite Software was originally installed. If you wish to protect multiple computers, you must obtain a separate paid license for each computer or you must obtain a multi-computer license which will be applicable to the number of computers stated in such license. To obtain such a license, contact us at the place indicated in Section 33 (Carbonite Contact Information).

    You may not sub-license, or charge others to Use or access, the Carbonite Products or Services and you may not redistribute the Carbonite Products or Services or provide others with access to or Use of them, unless you have entered into a Reseller, Affiliate or similar Agreement with Carbonite to engage in this activity. Without limiting the forgoing, you will not permit others to Use the Carbonite Products or Services to access or decrypt data stored on servers provided by Carbonite or Carbonite Affiliates; you will not Use or permit others to Use the Carbonite Products or Services to decrypt data encrypted by others; and you will not Use or permit others to Use the Carbonite Products or Services to provide encryption or decryption services to others, whether or not such services are compensated.

  1. Trial Licenses. You may have received as part of your Carbonite license the opportunity to extend the expiration date of your license or trial through the Use of various marketing codes. If you do not enter these codes at the time you purchase your license or start your trial license, Carbonite will not add this additional time to your license or trial at a later date.

    If you received a free, trial, or evaluation license for which you have not paid a license fee, Carbonite grants to you a personal, non-exclusive, non-transferable limited license to Use the Carbonite Software in object code form only on one computer or device from which you are licensed to access and Use the Carbonite Products or Services during the free, trial, or evaluation period in accordance with these Terms and Conditions of Use. You may only install one free, trial, or evaluation license in each calendar year per computer.

  1. Renewals. You agree that Carbonite shall have the right to automatically and without notice renew your license to continue to Use the Carbonite Products or Services upon expiration of your then-current license, and that as part of such renewal Carbonite shall have the right to charge the applicable renewal fees and any applicable taxes to any credit card you used to purchase your then-current license. You agree that if you elect to not permit Carbonite the right to automatically renew your license to Use Carbonite Products or Services or your credit card information on file with Carbonite does not permit automatic renewal, then Carbonite may terminate your license.

    You agree that if you have licensed Carbonite Products or Services for a period of greater than ninety (90) calendar days you have thirty (30) calendar days from the date that your license was renewed to elect to discontinue your Use of Carbonite Products or Services. If you have licensed Carbonite Products or Services for a period of less than or equal to ninety (90) calendar days you have seven (7) calendar days from the date that your license was renewed to elect to discontinue your Use of Carbonite Products or Services. If you elect to discontinue your Use of Carbonite Products or Services within this period, you will be issued a full refund for the amount of your license renewal. You are responsible for ensuring that Carbonite has current and accurate records necessary, to renew your license, including without limitation, credit card data.

  1. Upgrades. Carbonite may in its sole discretion provide automatic upgrades to the Carbonite Products or Services. These upgrades may not be consistent across all platforms and computers and that the performance and features offered by Carbonite may vary depending on your computer and other equipment. You agree that we may automatically check your version of the Carbonite Software and automatically update the Carbonite Software on your computer. You agree to accept and to take no action to interfere with such automatic upgrades, scanning, and related activities and services. If you shut down your computer or the Carbonite Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
  1. Refunds. Carbonite does not offer any refunds for purchases of Carbonite Products or Services, except as expressly provided in this Agreement.
7. Assignment and Delegation by Carbonite

Carbonite may, in its sole discretion, transfer or assign all or any part of its rights in the Carbonite Software, the Carbonite Products or Services, and any license or contract related thereto, and may delegate all or any portion of its duties, if any, under any such Carbonite Products or Services, licenses, or other contracts.


8. No Transfers or Modifications by You

You may not sell, assign, grant a security interest in or otherwise transfer any right in the Carbonite Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the Carbonite Products or Services. You may not translate, reverse-engineer or reverse-compile or decompile, disassemble, make derivative works from, or otherwise attempt to discover any source code in the Carbonite Software or decrypt any files that are not associated with your computer.

You may not modify the Carbonite Software or use it in any way not expressly authorized by these Terms and Conditions of Use. You may not obtain the communications protocol for accessing the Carbonite Products. You may not authorize or assist any third party to do any of the foregoing.


9. Protection of Files

You are solely responsible for protecting the information on your computer such as by installing anti-virus software, updating your applications, password protecting your files, and not permitting third party access to your computer. You understand that the Carbonite Products or Services may back-up files that are no longer usable due to corruption from viruses, software malfunctions or other causes. This might result in you restoring files that are no longer usable.


10. Deletion of Backup Data

Carbonite Software saves to a server operated by Carbonite or a Carbonite Affiliate an encrypted copy of each file you designate. The Carbonite Software scans for changes or additions to these files and then periodically creates an encrypted copy of modified or newly designated file. You will not be able to restore files that Carbonite has not completed copying or files that have been change but not yet been backed up or not eligible for back up. Carbonite does not maintain a back-up copy of your data saved to our servers.

If your license to Use Carbonite Products or Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, Carbonite and the Carbonite Affiliates may, without notice, delete or deny you access to any of your Backup Data that may remain in their possession or control.

You agree that if you mark a file to no longer be backed-up, delete a file from your computer, or terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that these files may not be available to you should you wish to restore them.

You agree that Carbonite and Carbonite Affiliates may retain (but shall have no obligation to retain) your Backup Data for a period after your trial or license has been terminated, expired, or otherwise lapsed, as part of Carbonite’s marketing to you the opportunity to purchase, renew, or extend a license.


11. Customer Support

Carbonite may, in its sole discretion, provide customer support or service to its customers. This service may be available only on selected days and during a limited number of hours. Service may also be available through only certain delivery vehicles such as email or telephone and some services may only be available for the payment of an additional fee or charge. As part of the delivery of services Carbonite may employ a variety of tools or services to aid in the process of resolving your issues as a user. You grant Carbonite the right to use these tools and hold Carbonite harmless for the use of these tools as well as the guidance provided by its customer support staff who in no way can be fully aware of all of the complexities associated with the Carbonite product, your computer, or all of the related or associated infrastructure such as your internet service provider’s infrastructure.


12. Restrictions on Access to Carbonite Products or Services

You may access Carbonite Products or Services only through the interfaces and protocols provided or authorized by Carbonite. You agree that you will not access Carbonite Products through unauthorized means, such as unlicensed software clients. Certain Carbonite Products backup only certain types of files. You agree not to circumvent these limitations in any way, including but not limited to, changing file extensions or header information.


13. Communications

You are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use Carbonite Products or Services. Without limiting the foregoing, you must pay all charges, taxes, and other costs and fees related to obtaining your own Internet access, telephone, computer, and other equipment, and any communications or other charges incurred by you to access Carbonite Products or Services.


14. Termination and Fair Use Policy

CARBONITE SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF CARBONITE PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY CARBONITE TO BE USING THE CARBONITE PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY CARBONITE OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER’S ACCOUNT WITH CARBONITE AND THE LICENSE TO USE THE CARBONITE PRODUCTS OR SERVICES.

You agree that we may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of Carbonite Products or Services and to prevent abuses. As part of these practices, we reserve the right to monitor our system to identify excessive consumption of network resources and to take such technical and other remedies as we deem appropriate. Your consumption of Carbonite Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of Carbonite’s customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan that will permit you to continue to use Carbonite Products or Services. Although violations of this policy have been infrequent, we nevertheless reserve the right to terminate or suspend your license and any license to use the Carbonite Software, without prior notice in the event of a violation of this policy.


15. Data Collection, Encryption, Privacy, and Disclosure

Carbonite will collect and use Personal Information in accord with the terms of our Carbonite Privacy Policy, which is incorporated into and made a part of these Terms and Conditions of Use. You hereby consent to Carbonite’s use of your Personal Information under the terms of the Carbonite Privacy Policy, as it may be amended from time to time.

Carbonite Software routinely scans your computer in order to: detect new, modified, or deleted data files that require further action to complete backup and restore operations; catalog the number and total storage size of various file types on your computer; inspect file headers and related information in order to confirm that each file’s type is properly represented by its file extension; and other purposes related to monitoring the status of your license and providing the Carbonite Products or Services to you.

The contents of your files are encrypted before they are transmitted to Carbonite’s data center. Carbonite may have the ability to decrypt your data files. However, Carbonite will not decrypt your files unless i) it reasonably believes that it must do so to troubleshoot problems with the Carbonite Services or ii) it reasonably believes it must do so in order to comply with a law, subpoena, warrant, order, or regulation, including, without limitation, the requirement of a certification that complies with 18 U.S.C. § 2703. Carbonite may also provide access to your data to government authorities if Carbonite suspects or believes that the data contain child pornography or other prohibited data or that the data are being used for illegal purposes. You acknowledge that Carbonite or Carbonite Affiliates may use servers and other equipment to provide the Carbonite Products or Services that are located in the United States or in other countries where litigants, law enforcement, courts, and other agencies of the government may have the right to access data stored within their jurisdictions upon terms and conditions provided by local law, and that as a result, they may gain access to your Backup Data as provided by applicable local law.


16. Warranties
  1. WARRANTY. Carbonite warrants that the Carbonite Products or Services will for a period of thirty (30) days from the date of registration and payment perform substantially as specified in the applicable Carbonite documentation. If you satisfactorily demonstrate to Carbonite within such thirty (30) day period that a Carbonite Product or Service contains errors, then as Carbonite’s sole and exclusive liability and as your sole and exclusive remedy, Carbonite shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the Carbonite Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the Carbonite Product or Service and terminate your license under the Terms and Conditions of Use. Carbonite does not warrant the results of its correction or replacement Carbonite Products or Services. Correction or replacement under this Section 16 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, upgrades, enhancements, or updates by Carbonite to you, shall not be deemed to begin a new, extended, or additional license, license period, or warranty period.
  1. DISCLAIMER OF OTHER WARRANTIES. THE LIMITED WARRANTY IN THE PRECEDING PARAGRAPH IS IN LIEU OF ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, WRITTEN OR ORAL, INCLUDING BUT NOT LIMITED TO, ANY WARRANTY OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT, AND ANY WARRANTY ARISING BY STATUTE OR OTHERWISE IN LAW, OR FROM A COURSE OF DEALING OR USAGE OF TRADE. Carbonite and the Carbonite Affiliates do not warrant that the functions contained in the Carbonite Products or Services will meet your requirements, that the operation of the Carbonite Products or Services will be uninterrupted or error-free, or that defects in the Carbonite Products or Services will be corrected. Carbonite and Carbonite Affiliates do not warrant or make any representations regarding the use or the results of the use of the Carbonite Products or Services in terms of their correctness, accuracy, reliability or otherwise. Carbonite and Carbonite Affiliates do not represent or warrant that users will be able to access or use the Carbonite Products or Services at times or locations of their choosing, or that Carbonite and Carbonite Affiliates will have adequate capacity for any user’s requirements. No oral or written statement, information or advice given by Carbonite, Carbonite Affiliates, or their respective employees, distributors, dealers, or agents shall create any warranties in addition to those express warranties set forth in this Section 16 (Warranties). You may have other statutory rights. However, to the full extent permitted by law, the duration of statutorily required warranties, if any, shall be limited to the warranty period.
17. Limitation of Liability

With respect to defects or deficiencies in the Carbonite Products or Services, the liability of Carbonite and Carbonite Affiliates will be limited to performance of its responsibilities under Section 16 (Warranties) above. With respect to other breaches of contract, the liability of Carbonite and Carbonite Affiliates shall in no event exceed the total amount received by Carbonite from you under these Terms and Conditions of Use for your current license period, and only such amounts as relate to the computer affected by the breach. IN NO EVENT WILL CARBONITE, THE CARBONITE AFFILIATES, CARBONITE DISTRIBUTORS OR CARBONITE SUPPLIERS BE LIABLE TO YOU OR TO ANY THIRD PARTY FOR ANY LOST PROFITS, LOST DATA, INTERRUPTION OF BUSINESS, OR OTHER SPECIAL, INDIRECT, INCIDENTAL, OR CONSEQUENTIAL DAMAGES OF ANY KIND ARISING OUT OF THE USE OR INABILITY TO USE THE CARBONITE PRODUCTS OR SERVICES OR TO USE OR RETRIEVE ANY BACKUP DATA, WHETHER FOR BREACH OF WARRANTY OR OTHER CONTRACT BREACH, NEGLIGENCE OR OTHER TORT, OR ON ANY STRICT LIABILITY THEORY, EVEN IF CARBONITE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGES OR A REMEDY SET FORTH IN THESE TERMS OF USE IS FOUND TO HAVE FAILED OF ITS ESSENTIAL PURPOSE, AND WHETHER OR NOT SUCH LOSS OR DAMAGES ARE FORESEEABLE.

Neither Carbonite nor any Carbonite Affiliate assumes any liability to any party other than you arising out of your Use or inability to Use the Carbonite Products or Services. The limitations of damages set forth above are fundamental elements of the bargain between Carbonite and you. Carbonite would not be able to provide the Carbonite Products or Services to you without such limitations.


18. Indemnification

YOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS CARBONITE, CARBONITE AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS’ FEES, ARISING OUT OF YOUR USE OF THE CARBONITE PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE.

CARBONITE RESERVES THE RIGHT, AT ITS OWN EXPENSE AND IN ITS SOLE DISCRETION, TO ASSUME THE EXCLUSIVE DEFENSE AND CONTROL OF ANY MATTER OTHERWISE SUBJECT TO INDEMNIFICATION BY YOU. IN THAT EVENT, AND ONLY IN SUCH EVENT, SHALL YOU HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR CARBONITE IN THAT MATTER. If Carbonite chooses to provide its own defense in connection with any matter subject to indemnification under these Terms and Conditions of Use, you shall participate and cooperate in the defense of Carbonite and Carbonite Affiliates, at your own expense, to the full extent requested by Carbonite.


19. Trademarks, Service Marks, and Other Intellectual Property

All trademarks, service marks, or other similar items used in conjunction with the Carbonite Products or Service are the property of their respective owners, including, without limitation, Carbonite, Inc.

The Carbonite Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the Carbonite Products or Services shall remain with Carbonite and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with Carbonite’s or its licensor’s ownership of or rights with respect to the Carbonite Products or Services.


20. U.S. Government Restricted Right

The Carbonite Software is a "commercial item" as that term is defined at 48 C.F.R. 2.101, consisting of "commercial computer software" and "commercial computer software documentation" as such terms are used in 48 C.F.R. 12.212. Consistent with 48 C.F.R. 12.212 and 48 C.F.R. 227.7202-1 through 227.7202-4, all U.S. Government end users acquire the Carbonite Software with only those rights set forth therein.


21. High Risk Activity

You acknowledge and agree that the Carbonite Products or Services are not intended for use with any high risk or strict liability activity, including, without limitation, air or space travel, technical building or structural design, power plant design or operation, life support or emergency medical operations or uses, and that Carbonite makes no warranty and shall have no liability arising from any Use of the Carbonite Products or Services in any high risk or strict liability activities.


22. Dispute Resolution, Arbitration, Governing Law, and Venue
  1. Arbitration of Domestic Disputes. All disputes arising under or relating to this Agreement shall be resolved by final and binding arbitration conducted before a single arbitrator pursuant to the commercial arbitration rules of Resolute Systems, Inc. that were in force as of April 30, 2008. Evidentiary hearings and any other proceedings requiring personal attendance of parties or their representatives or witnesses shall be conducted in any U.S. city reasonably designated by the Licensee in the case of individual Licensees who procured the Carbonite Products or Services provided for by this Agreement primarily for non-commercial personal, family, or household purposes ("Consumer Licensees"), and in Boston, Massachusetts or such other place within the United States as the arbitrator may direct in the case of all other Licensees ("Commercial Licensees").
  1. Arbitration of International Disputes. Notwithstanding the provisions of Subsection 22(a) (Arbitration of Domestic Disputes), any dispute arising under this Agreement that involves a dispute between Carbonite and an individual who is neither a citizen nor a resident of the United States, or a dispute between Carbonite and an organization or entity that does not have facilities or personnel regularly located in the United States, shall, at either party’s request, be finally settled under the Rules of Arbitration of the International Chamber of Commerce by one or more arbitrators appointed in accordance with the said Rules, with such arbitration to be conducted in Singapore or such other place as the parties to such arbitration may agree.
  1. Exceptions to Agreement to Arbitrate. Notwithstanding the provisions of Subsections 22(a) (Arbitration of Domestic Disputes) and 22(b) (Arbitration of International Disputes), disputes pertaining to i) export controls, ii) unlawful Use of the Carbonite Products or Services, or iii) the scope, applicability, or compliance with governmental or court-ordered access to or limits on use of Backup Data, shall not be resolved by arbitration, but shall instead by resolved by reference to a judicial or administrative body with jurisdiction over the dispute.
  1. Costs of Arbitration. The administrative expenses, arbitrator fees, and facility charges associated with the arbitration, whether domestic or international, shall be split equally between the parties; provided that, in cases involving Consumer Licensees, the Consumer Licensee shall not be required to bear such expenses, fees, and charges in excess of One Thousand U.S. Dollars ($1,000), and Carbonite shall bear the remainder of such expenses, fees, and charges. Each party shall be solely responsible for its attorney fees, expert witness fees, and other costs, fees, and expenses, except as may otherwise be provided in Section 18 (Indemnification).
  1. Discovery Procedures in Arbitration. The parties shall be entitled to such discovery as in the judgment of the arbitrator is appropriate, in light of the nature and objectives of arbitration, to ensure that each party has an adequate opportunity to determine the factual bases for its claims and defenses.
  1. Class Actions. Class actions and other procedural devices, however denominated, that allow pursuit in a single proceeding of claims of more than one claimant unrelated by blood or marriage shall not be permitted in the case of arbitrations hereunder involving either Consumer Licensees or Commercial Licensees or both.
  1. Form and Effects of Award. The arbitrator shall render a naked award. Judgment on any arbitral award under this Agreement may be entered in any court of competent jurisdiction. It is the intent of the parties that neither the award nor any resulting judgment have res judicata (claim preclusion) or collateral estoppel (issue preclusion) effects except as between the parties themselves.
  1. Applicable Law. The arbitration undertaking in this Agreement shall be governed by, construed, and interpreted in accordance with the Federal Arbitration Act, 9 U.S.C. §§ 1 et seq. and, in the case of arbitrations involving one or more non-U.S. parties, by the Convention on the Recognition and Enforcement of Foreign Arbitral Awards and the U.S. legislation implementing the same, 9 U.S.C. §§ 201 et seq. All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Massachusetts, USA, without regard to conflict of laws provisions. To the extent that the Arbitration provisions of this Agreement do not apply, the federal and state courts sitting in Boston, Massachusetts shall have exclusive jurisdiction and venue to adjudicate any dispute arising out of this Agreement. Each party hereto expressly consents to the personal jurisdiction of the courts of Massachusetts and service of process being effected by registered U.S. mail or by private delivery service providing proof of delivery, sent to the party being served. The United Nations Convention on Contracts for the International Sale of Goods as well as any other similar law, regulation or statute in effect in any other jurisdiction shall not apply.
23. Termination, Expiration, Cancellation
  1. Trial and Evaluation Licenses. If this Agreement pertains to a free, trial, or evaluation license (such as a license that provides a limited amount of back-up for free, for which you have not paid a fee and/or for which you do not pay a fee and associated taxes on or prior to expiration), the license granted under these Terms and Conditions of Use will terminate upon the expiration or cancellation of the license, when the Carbonite Product or Service you are using is no longer made available, twelve (12) months from the date you first installed the Carbonite Product and Service, or when Carbonite cancels or terminates the license, whichever is shorter. You agree to Use the Carbonite Products or Services for no longer than the trial or evaluation period unless you enter into another license and pay a license fee and associated taxes as applicable, or Carbonite allows your license to roll over for another one (1) year period which Carbonite may elect to do at its sole discretion and without notice to you.
  1. All Other Licenses; Limited Term. Your license will end upon the expiration of its stated term, upon your non-renewal of the licenses, upon your cancellation of the license, when Carbonite elects to discontinue the product, upon your breach of these Terms and Conditions of Use (if such breach is not cured within the time indicated below in this Section 23 (Termination, Expiration, Cancellation), or when Carbonite cancels or terminates your license, whichever occurs first (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination.")
  1. Termination for Unlawful or Abusive Use, Other Breach. Carbonite may block your access to your Backup Data and/or terminate your Use of the Carbonite Products or Services if Carbonite reasonably believes that the Backup Data may contain child pornography or are being used to support other types of illegal activities, if providing Carbonite Products or Services to a person located in a particular country would violate U.S. or other applicable law, or if your continued Use of Carbonite Products or Services may damage, disable, overburden, or impair our servers or networks.

    If you breach these Terms and Conditions of Use, your right to Use the Carbonite Products or Services shall automatically terminate if you fail to cure the breach after seven (7) calendar days after notice from Carbonite or any of the Carbonite Affiliates, unless your breach is due to violations of Section 4 (Lawful Use), Section 8 (No Transfers or Modifications by You), Section 18 (Indemnification), Section 19 (Trademarks), Section 20 (U.S. Government Restrictions), in which case termination will be without notice and without any right to cure.

    Upon termination: i) you shall immediately cease any and all Use of the Carbonite Products or Services and delete all copies of them; ii) the Carbonite Software may be disabled by Carbonite without notice to you; and iii) you will no longer have the right to access or retrieve your Backup Data; you hereby grant Carbonite the unrestricted right to delete all such Personal Information and Backup Data at any time after termination, without notice.

24. Survival of Provisions After Termination

In the event of any termination, expiration, or cancellation, the restrictions on your Use of the Software and the other applicable restrictions as set forth in Section 4 (Lawful Use), Section 6 (Carbonite License), Section 8 (No Transfers or Modifications by You), Section 16 (Warranties), Section 17 (Limitation of Liability), Section 18 (Indemnification),Section 19 (Trademarks, Service Marks, and Other Intellectual Property), Section 20 (U.S. Government Restricted Right), Section 21 (High Risk Activity), Section 22 (Dispute Resolution, Governing Law, Venue), Section 24 (Survival), Section 25 (Notice), Section 28 (Limitation on Actions), and Section 30 (Miscellaneous) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.


25. Notice

Any notice that may or must be given by Carbonite in connection with this Agreement or in connection with the Use of the Carbonite Products or Services, may be given by sending it to the email address provided by you upon registering for the Carbonite Products or Services or as you may provide from time to time thereafter by modifying your user profile at www.carbonite.com. You are responsible for ensuring that your accurate email address is available to Carbonite and provide any needed updates. Carbonite may, in its sole discretion, use other means of providing notice, such as: desktop notification; regular, certified, or registered mail; fax; commercial delivery service; or messenger. All such notices shall be deemed given when dispatched with payment of delivery charges made or arranged. You hereby consent to receiving notice by any such means. Notwithstanding the foregoing, Carbonite has no obligation to provide notice or attempt to locate a customer other than through the email address provided.


26. English Language

These Terms and Conditions of Use were negotiated and written in English. Any inconsistency between the Terms and Conditions of Use as expressed in English and any other language shall, to the full extent permitted by applicable law, be resolved by reference to the English version.


27. Entire Agreement, Limitations

These Terms and Conditions of Use (including the items incorporated by reference and modifications that may be made from time to time), constitute the entire agreement between Carbonite and you regarding Carbonite Products or Services, and supersedes all prior agreements between you and Carbonite regarding the subject matters hereof.

Any item or service furnished by Carbonite in furtherance of these Terms and Conditions of Use, although not specifically identified in them, shall nevertheless be covered by these Terms and Conditions of Use unless specifically covered by some other agreement entered into in written or electronic form between you and us and that explicitly references its replacement of these Terms and Conditions of Use.

Any modification or change in these Terms and Conditions of Use proposed or offered by you shall not become a part of these Terms and Conditions of Use unless accepted in a writing dated after the effective date of the applicable Terms and Conditions of Use, signed by an authorized officer of Carbonite, that explicitly identifies the writing as a modification to these Terms and Conditions of Use.

Should there be any conflict in terms between this Agreement and any other document, the terms and conditions set forth in this Agreement shall govern.

Any references that are singular or plural and any references that are masculine, feminine, or neuter in gender, are meant to be used interchangeably as the context of the sentence might imply.


28. Limitation on Actions

Unless otherwise required by law, an action or proceeding by you to enforce an obligation, duty, or right arising under this Agreement or by law must be commenced within one year after the cause of action accrues.


29. Copyright Infringement Notification

As provided in the Digital Millennium Copyright Act of 1998, we have designated the following individual for notification of potential copyright infringement regarding Web sites hosted by Carbonite: Customersupport@Carbonite.com

If you believe content hosted by Carbonite infringes a copyright, please provide the following information to the person identified above (17 U.S.C. § 512): (i) A physical or electronic signature of the copyright owner or authorized agent; (ii) Identification of the copyrighted work(s) claimed to have been infringed; (iii) Identification of the material that is claimed to be infringing or to be the subject of the infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit us to locate the material; (iv) Information regarding how we may contact you (e.g., mailing address, telephone number, e-mail address); (v) A statement that the copyright owner or its authorized agent has a good faith belief that use of the material in the manner complained of is not authorized by the copyright owner, its agent, or the law; and (vi) A statement that the information in the notification is accurate, and made under penalty of perjury, and, if an agent is providing the notification, a statement that the agent is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.


30. Miscellaneous

You agree to reimburse Carbonite for any costs or fees related to its enforcement of this Agreement, including without limitation the expert fees and attorney fees regularly charged by the experts and legal counsel chosen by Carbonite.

Carbonite is not responsible for misprints, errors or omissions in its advertising and promotional materials.

If you have designated a person (whether by email, orally, by registering such person with Carbonite, or by granting such person access to your username and password) to have access to your Backup Data, in the possession or control of Carbonite, or any Carbonite Affiliate, you hereby grant Carbonite and the Carbonite Affiliate the right to give that person access to your Backup Data, including without limitation in the event of your death or incapacity


31. Severability

This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (i) such provision will be interpreted, construed, or reformed to the extent reasonably required to render it valid, enforceable, and consistent with the original intent underlying such provision and ii) such invalidity or unenforceability will not affect the validity or enforceability of any other provision of this Agreement and all such provisions shall remain in full force and effect.


32. Billing Issues

You must notify us about any billing problems or discrepancies within sixty (60) days after they first appear on the statement you receive from your bank or credit card company or other billing company. Send such notification to us at the Carbonite Contact Information indicated in Section 33 (Carbonite Contact Information) below. If you do not bring such problems or discrepancies to our attention within that sixty (60) day period, you agree that you waive the right to dispute such problems or discrepancies.


33. Carbonite Contact information

If you have any questions or comments, please contact us at customersupport@Carbonite.com. Although we strongly prefer email communication, you may also send regular postal mail to:

      Carbonite, Inc.
      334 Boylston St - 3rd floor
      Boston, MA 02116