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Terms & Conditions
Terms of Services Terms and Conditions This Terms of Service ("Agreement") is a legally binding contract between BackupMyServer and you ("Customer," "you" or "your") that shall govern the purchase and use, in any manner, of the services provided by BackupMyServer to Customer (collectively, the "Services"). By purchasing and/or using the Services in any manner, you represent that you have read, understand, and agree to all terms and conditions set forth in this Agreement, and that you are at least eighteen (18) years old and have the legal ability to engage in a contract in the State of California. If you do not agree to all the terms and conditions set forth in this Agreement, then you may not use any of the Services. If you are already a customer of BackupMyServer and do not agree with the terms and conditions set forth in this Agreement, you should immediately contact BackupMyServer to cancel your Services. Ownership and Services Purchased 1.1. The individual or entity set out in our records as the primary billing contact shall be the owner of the account. 1.2. The features and details of the Services governed by this Agreement are described on the web pages setting out the particular services or products you have purchased ("Service Description Page") based on their description on the Service Description Page as of the Effective Date, as defined below. BackupMyServer may modify the products and services it offers from time-to-time. Should the Service Description Page change subsequent to the Effective Date, we have no obligation to modify the Service to reflect such a change. The services and products provided to you by BackupMyServer as set out on the Service Description Page, are referred to as the "Services." 1.3. Certain aspects of the Services are provided by third parties. These third parties may have reserved the right to make changes, including material changes, to the services provided by them. You may terminate this Agreement if such a change materially affects the Services. Term of Agreement 2.1. This Agreement becomes effective immediately when Customer clicks "I Agree." ("Effective Date") and remains effective and binding until terminated by either party as outlined below. This Agreement may only be modified by a written amendment signed by an authorized executive of BackupMyServer, or by the posting by BackupMyServer of a revised version. 2.2. The term of this Agreement is set to the Customer's billing term ("Term"). If no Term is set out, the Term shall be one (1) year. Upon expiration of the initial Term, this Agreement shall renew for periods equal to the length of the initial Term, unless one party provides notice of its intent to terminate as set out in this Agreement. Obeying the Law 3.1. BackupMyServer is registered and located within the United States of America and as such, we are required to comply with the laws and official policies of the United States of America, regardless of where the Services are provided. In addition, BackupMyServer will comply with appropriate laws and official policies set forth by the State of California. Payments and Billing 4.1. BackupMyServer will automatically bill your payment method on file up to fifteen (1) day prior to the due date on all terms of one (1) or more years; for terms less than one (1) year in length, BackupMyServer will attempt to bill your payment method on file up to five (1) day prior to due date. All fees are billed in United States Dollars (“USD”) and are subject to change with thirty (30) days notice prior notice to you. 4.2. Your "Billing Term" is the period of time you have chosen to receive bills for the Services. For example, your Billing Term may be monthly or annually. 4.3. BackupMyServer is only able to accept payment through PayPal at this time. Active PayPal subscriptions are automatically billed. PayPal one time payments must be initiated manually by you. It is your obligation to ensure that recurring fees are paid on their due date. 4.4. As a customer of BackupMyServer, it is your responsibility to ensure that all billing information on file with BackupMyServer is accurate and that any credit card or other automated payment methods on file has sufficient funds for processing. You are solely responsible for any and all fees charged to your payment method by the issuer, bank, or financial institution including, but not limited to, membership, overdraft, insufficient funds and over the credit limit fees. BackupMyServer screens all orders for fraud and other unethical practices. Services will not be activated until this fraud screen is completed. In certain cases, if your account is flagged for fraud, third party services, such as domain name registrations, will not be processed. BackupMyServer has no liability for the failure to provide Services, including third party services if your account fails its fraud screen. Late Payments 5.1. Any account not paid in full by the end of the first day of the Billing Term will be given a seven (7) day grace period. If payment is not made within the seven (7) day grace period, BackupMyServer reserves the right to suspend your Service(s) with BackupMyServer and to charge a $10 "late penalty." Fourteen (14) days following suspension of Services for non-payment, BackupMyServer reserves the right to terminate Service(s) for non-payment. 5.2. BackupMyServer is not responsible for any damages or losses as a result of suspension or termination for non-payment of your account. In addition, BackupMyServer reserves the right to refuse to re-activate your Services until any and all outstanding invoice(s) have been paid in full. Refund Policy and Billing Disputes 6.1. BackupMyServer offers a thirty (30) day money back guarantee on shared web hosting packages. After the thirty (30) day money back guarantee, eligible plans are eligible for an account credit on a prorated basis. Such credits will have any previously extended term discounts withheld from the total credit amount and will be calculated based on the number of months remaining in your billing cycle. BackupMyServer offers a ten (10 day) money back guarantee from the day of purchase on website design and fulfillment packages. Beyond 10 days, no refunds are available for any reason, including, but not limited to dissatisfaction with the design process or dissatisfaction with the final product delivered to you. 6.2. No refunds are offered on 1-year contract offers, custom packages, setup fees, domain transfers, SSL certificates, advanced support fees, processing fees, or software licenses. BackupMyServer reserves the right to deduct fees for value added services that may have been included in the Services at no additional fee, such as an SSL certificate, from any refunds or account credits. 6.3. Only first-time accounts are eligible for a refund under the 30-day money back guarantee. For example, if you had or still have an account with BackupMyServer before, canceled and signed up again, you will not be eligible for a refund or if you have opened a second account with BackupMyServer In addition, refunds are not offered for accounts that are suspended or terminated for violating this Agreement. 6.4. Refunds will be issued only to the payment method that the original payment was sent from, and may take up to one (1) week to process. 6.5. BackupMyServer will not activate new orders or provide additional Services for customers who have an outstanding balance with BackupMyServer For a new order to be setup or a new package to be activated, you must have a balance of $0.00, unless otherwise stated by BackupMyServer in writing. 6.6. Exchange rate fluctuations for international payments are constant and unavoidable. Like all payments, all refunds are processed in U.S. dollars and will reflect the exchange rate in effect on the date of the refund. All refunds are subject to this fluctuation and BackupMyServer is not responsible for any change in exchange rates between time of payment and time of refund. In addition, BackupMyServer reserves the right to refuse a refund at any time for any or no reason. 6.7. If you believe there is an error in BackupMyServer's billing, you must contact BackupMyServer about it, in writing, within thirty (30) days of the date you are billed or charged. BackupMyServer's obligation to consider your claim is contingent on your providing it with sufficient facts for BackupMyServer to investigate your claims. You waive your right to dispute any charges or fees if you fail to notify BackupMyServer in writing or meet the deadline set out above. If BackupMyServer finds that your claim is valid, BackupMyServer agrees to credit your account on your next billing date. Cancellation of Services 7.1. Either party may terminate this Agreement by providing notice to the other as provided herein. 7.2. You may cancel Service(s) with BackupMyServer by logging into BackupMyServer's account center and filling out and submitting the cancellation request form located at https://myaccount.catandmouse.co/cancel. In the event that you are unable to login to your billing account with BackupMyServer, please contact our billing department via email at billing@catandmouse.co and we will assist you. However, BackupMyServer prefers that cancellations are submitted through the account center to reduce the likelihood of error and ensure the security of your account. Cancellations are not final until confirmed by a representative of BackupMyServer in writing by email. 7.3. Cancellations must be requested via the form indicated above 48 hours or more prior to the Service's renewal date. If a cancellation notice is not received within the required timeframe, you will be billed for the next Billing Term and are responsible for payment as set forth above. 7.4. When upgrading or downgrading package(s), you are responsible for canceling any previous package(s). To cancel previous package(s), you must submit a cancellation request as described in Section 7.2 above. 7.5. BackupMyServer may terminate this Agreement at any time by providing notice to Customers via email. Should BackupMyServer terminate this Agreement for any reason other than a material breach, or violation of BackupMyServer's Acceptable Use Policy, any prepaid fees shall be refunded. 7.6. One party may also terminate this Agreement upon the occurrence of a material breach which has not been cured by the other party within ten (10) days of their receipt of written notice of the breach. For the purposes of defining a material breach, materiality shall be determined from the perspective of a reasonable business person with significant experience in conducting business on the Internet. Notices of the material breach must contain sufficient detail for the party against whom the assertion of material breach is directed to identify the breach and attempt to take corrective action. Refusal of Service 8.1. BackupMyServer reserves the right to refuse service to anyone at any time. Any material that, in BackupMyServer's judgment, is obscene, threatening, illegal, or violates BackupMyServer's terms of service in any manner may be removed from BackupMyServer's servers (or otherwise disabled), with or without notice. 8.2. Similarly, BackupMyServer reserves the right to cancel, suspend, or otherwise restrict access to the Service(s) it provides at any time, for any or no reason, and with or without notice. BackupMyServer is not responsible for any damages or loss of data resulting from such suspension or termination. 8.3. If any manner of communication with BackupMyServer's staff could be construed as belligerent, vulgar (curse words), attacking, highly rude, threatening, or abusive, you will be issued one warning. If the communication continues, your account may be suspended or terminated without refund. This includes, but is not limited to, threats to sue, slander, libel, publicly post, or initiate a chargeback. 8.4. BackupMyServer happily accepts orders from outside the United States but may limit accounts from certain countries with a high fraud rate. To help protect BackupMyServer and its customers from fraud, BackupMyServer may ask you to provide a copy of a government issued identification and/or a scan of the credit card used for the purchase. If you fail to meet these requirements, the order may be considered fraudulent in nature and denied. 8.5. Due to United States law, BackupMyServer cannot accept any orders originating from countries that the United States has established an embargo on or otherwise prohibited trade with. By becoming a customer, you represent and warrant that: (i) you are not located in a country that is subject to a U.S. Government embargo, or that has been designated by the U.S. Government as a "terrorist supporting" country; and (ii) you are not listed on any U.S. Government list of prohibited or restricted parties. Resource Usage 9.1. Each customer is required to utilize as little server resources as possible, so as to allow for reasonable performance by all BackupMyServer customers. Because server CPU and memory are shared resources, excessive consumption of these resources can interfere with or completely prevent normal service performance for other users. BackupMyServer reserves the right to suspend or terminate Services on any account that, at its sole discretion, is abusing server resources. Such suspension or termination can occur at any time without prior warning, and for any or no reason. 9.2. Enforced resource limits for shared packages: 10% CPU Usage 5% Memory Usage (or 512 MB) 50 Running Processes 15 Minute Max Execution Time 100,000 Total Inodes 300 outgoing email messages per 60 minute period (all excess messages will be discarded and not delivered) 9.3 Cloud VPS services leverage a shared, network based, Storage Area Network (SAN) and shared Hardware Virtual Machines (HVM) providing Central Process Unit (CPU) time. So as to allow reasonable performance for all customers, individual customers are expected to demonstrate responsible resource usage of the Storage Area Network (disk throughput MB/s / disk IN/OUT operations per second), Hardware Virtual Machine CPU (Central Processor Unit Time), and any other shared resource not explicitly mentioned herein. BackupMyServer regularly monitors all Storage Area Networks and Hardware Virtual Machine CPU loads for normal usage patterns and routinely evaluates customer deployments for abnormal usage patterns. BackupMyServer reserves the right to suspend, terminate, and/or limit (such as through disk throughput limiting, in/out operation per second limiting and lowering of CPU priority) services on any account, that at its sole discretion, is using an abnormally large amount of shared resources. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason. Bandwidth Usage 10.1. You are allocated a monthly bandwidth allowance depending on the hosting package you purchase. 10.2. Should your account pass the allocated amount, BackupMyServer reserves the right to: a) suspend the account until the start of the next allocation, b) suspend the account until more bandwidth is purchased at an additional fee, c) suspend the account until you upgrade to a higher level of package, and/or d) charge you an additional fee for the overages. 10.3. Unused transfer in one month cannot be carried over to the next month and bandwidth is not pooled among multiple servers or accounts unless otherwise specified by a representative of BackupMyServer in writing. 10.4. Like other resources, customers are expected to demonstrate responsible usage of bandwidth resources, so as to allow for reasonable performance by all BackupMyServer customers. BackupMyServer regularly monitors bandwidth usage and reserves the right to suspend, terminate, and/or limit (such as through port speed limiting) Services on any account, that at its sole discretion, is using an abnormally large amount of bandwidth. Such suspension, termination, or limitation can occur at any time without prior warning, and for any or no reason. Licenses 11.1. BackupMyServer grants to you a non-exclusive, non-transferable, worldwide, royalty free license to use technology provided by BackupMyServer solely to access and use the Services. This license terminates on the expiration or termination of this Agreement. Except for the license rights set out above, this license does not grant any additional rights to you. All right, title and interest in BackupMyServer's technology shall remain with BackupMyServer, or its licensors. You are not permitted to circumvent any devices designed to protect BackupMyServer, or its licensor's ownership interests in the technology provided to you. In addition, you may not reverse engineer this technology. 11.2. You grant BackupMyServer, or to any third parties used by BackupMyServer to provide the Services, a non-exclusive, non-transferable, worldwide, royalty free, license to use, disseminate, transmit and cache content, technology and information provided by you and, if applicable, your End Users, in conjunction with the Services. This license terminates on the expiration or termination of this Agreement. All right, title and interest in your technology shall remain with you, or your licensors. Service Modifications 12.1. BackupMyServer reserves the right to add, modify, or remove any or all features from any service BackupMyServer provides, at any time, with or without notice. This includes, but is not limited to, disk space limits, bandwidth limits, domain limits, pricing, and third party applications. These changes can be made for any or no reason and BackupMyServer does not guarantee the availability of any feature, whether written or implied. If the removal of a feature materially impacts your ability to use the Service, you may terminate this Agreement. For the purposes of this paragraph only, the term "materially" means that a reasonable business person would not have purchased the Services for the purposes used by you. Uptime Guarantee 13.1. BackupMyServer guarantees that your website and services that directly affect its display to the Internet (such as HTTP or MySQL) will be accessible 99.9% of the time in any given calendar month. If BackupMyServer fails to meet its uptime guarantee, you will be issued a credit equivalent to one (1) day of service per forty five (45) minutes downtime. The first 45 minutes (or 0.1%) of downtime per month are not counted towards any credit and the maximum credit available is one (1) month of service. 13.2. Credits are only available for future services/invoices and cannot be issued as refunds. All credit requests must be sent via email to BackupMyServer's billing department no later than the tenth (10th) day of the month following the SLA (as that term is defined below) violation. Credits are issued based on the uptime for the previous calendar month only and requests not submitted within the required time frame cannot be approved. 13.3. For example, if you experienced less than 99.9% uptime in the month of September, you would need to submit your request for credit no later than October 10th. 13.4. The following circumstances are not eligible for credit and are specifically excluded from our Uptime Guarantee: scheduled maintenance, DDoS or similar attack, hardware failure, third-party software failure, customer maxing its resource container, issues resulting from errors or omissions by the customer, issues relating to the customer's ISP, firewall blocks/bans, or any other circumstance beyond our reasonable control. All credits are at the discretion of BackupMyServer, based on its investigation of any issue that is covered by this section. 13.5. If BackupMyServer provides a credit for a particular Service, this shall be your sole and exclusive remedy for defects in, or issues with, the Service. Support Policy 14.1. BackupMyServer will provide technical support to you twenty-four (24) hours a day, three-hundred-sixty-five (365) days a year. The only official method for technical support is via BackupMyServer's help desk at http://myaccount.catandmouse.co. 14.2. Limited support will be provided, at BackupMyServer's discretion and subject to availability of staff, via telephone and/or live chat. BackupMyServer will always do its best to provide fast, friendly, and helpful support over the telephone and live chat, but these options are not official methods of support and no guarantee is made as to the availability, accessibility, or technical expertise provided via these mediums. 14.3. Inquires via telephone or live chat support should be limited to general questions which do not require access to any account or server to investigate or resolve and should not be used to request the status of or provide updates to a help desk ticket. Any issue requiring investigation, research, or access to an account/server should be sent via the help desk. BackupMyServer reserves the right to direct any issue to the help desk at its discretion and to refuse to provide support for such issues via telephone or live chat. Advanced Support Policy 15.1. Support to Customer is limited to BackupMyServer's area of expertise and is available only for issues related to the physical functioning of the Services. BackupMyServer does not provide support for any third party software including, but not limited to, software offered by but not developed by BackupMyServer BackupMyServer reserves the right to refuse assistance with and/or assess an "Advanced Support Fee" of $35.00 USD per hour (1 hour minimum) for any issue that, at BackupMyServer's sole discretion, is: (a) outside the scope of standard support; or (b) caused by customer error or omission. BackupMyServer will always ask for your permission before providing advanced support that may be subject to a fee. By providing your permission, you agree to pay Advanced Support Fees as billed. Backup Services 16.1. Your use of BackupMyServer's Services is at your sole risk. This service is provided to you as a courtesy. BackupMyServer is not responsible for files and/or data residing on your account. You agree to take full responsibility for files and data transferred and to maintain all appropriate backup of files and data stored on BackupMyServer's servers. Any and all backup services provided by BackupMyServer, whether paid or not, are offered with no warranty or guarantee of their date, accuracy, and integrity. IP Address Allocation 17.1. Any dedicated IP order, in addition to ones provided with a hosting package, may be subject to IP justification. Justification practices are subject to change to remain in conformity with policies of American Registry for Internet Numbers ("ARIN"). BackupMyServer reserves the right to deny any dedicated IP request based on insufficient justification or current IP utilization. Acceptable Usage Policy 18.1. You shall use BackupMyServer's services only for lawful purposes. Transmission, storage, or presentation of any information, data, or material in violation of the laws of the State of California or the United States is prohibited. This includes, but is not limited to: copyrighted material in which you are not the copyright holder, material that is threatening or obscene, or material protected by trade secrets or other statutes. You agree to indemnify and hold harmless BackupMyServer from any claims resulting from the use of the service which damages you or any other party. 18.2. BackupMyServer reserves the right to terminate Services for any customer or End User activity that exposes it to legal liability or endangers its ability to provide services to other customers. The contents, links, or actions on any Services listed below are a violation of this Agreement. This is not an exhaustive list, but is designed to assist you in evaluating whether BackupMyServer is the appropriate service provider for you: Copyright Infringement - Hosting, Distributing, or Linking to Copyright Infringed Materials Child Pornography - Hosting, Distributing, or Linking to Pornography Involving a Person Under Legal Age Pornography - Hosting, Distributing, or Linking to Pornography Involving an Adult CPU/Memory/Resource Abuse - Consuming Excessive Amount of Server Resources Causing Server Performance Issues DoS Source - Source of Denial of Service Attack DoS Target - Target of Denial of Service Attack File Scripts - File Dump/Mirror Scripts (similar to Rapidshare) Forgery - Faking an IP Address, Hostname, E-Mail Address, or Header Fraud Site - Hosting or Linking to a Website Intended to Deceive the Public including, but not limited to sites listed at aa419.org & escrow-fraud.com HYIP - Hosting or Linking to a High Yield Investment Program Website Identity Theft - Hosting, Distributing, or Linking to Stolen Account Identification Information Infection - Hosting, Distributing, or Linking to Exploits, Trojans, Viruses, or Worms Investment Sites - FOREX, E-Gold Exchange, Second Life/Linden Exchange, Ponzi, MLM/Pyramid Scheme, High-Yield Interest Programs (HYIP) or Related Sites IRC - Internet Relay Chat Server, including IRC Scripts/Bots Mass Storage - Storing Mass Amounts of Backups, Archives, Videos, etc. PayDay Loan Sites - including any site related to PayDay loans, PayDay loan affiliate programs, etc Pharmacy Sites - Sites that engage in the illegal distribution of prescription medications, including, but not limited to, promotion, marketing, or sale of prescription medications without a valid prescription. Phishing - Identity Theft by Email Under False Pretense Proxy Site - Hosting of or linking to an Anonymous Proxy Server Bulk Email - No more than 500 emails of similar content (Opt In) Spam Email - Unsolicited Commercial Email (UCE) or Unsolicited Bulk Email (UBE) Spam List - Hosting, Distributing, or Linking to Email Address Lists for Spam Spam Site - A Site Advertised by Spam Email or Spam Web Spam Ware - Hosting, Distributing or Linking to Software Designed for Spamming Spam Web - Unsolicited, Bulk, or Forged Site Advertisement in Web Logs, Forums, Guestbooks, or Social Media Spamhaus - Spam Causing Blacklisting of an IP at www.spamhaus.org for Malicious Activity Terrorist Site - Hosting or Linking to a Site Advocating Terrorism Tools - Hosting, Distributing, or Linking to Tools or Instructional Material on Hacking/Cracking or Other Illegal Activity Trademark - Hosting, Distributing, or Linking to Trademark Infringed Materials Warez - Hosting, Distributing, or Linking to Cracks, Hacks, KeyGenz, Serial, or Pirated Software Any other material BackupMyServer judges to be threatening or obscene. 18.3. You may not resell individual services within any single account such as web space, emails accounts, or mailing lists. 18.4. BackupMyServer responds to valid notices of alleged copyright infringement. Copyright complaints are handled pursuant to the Digital Millennium Copyright Act ("DMCA"). Complaints that do not comply with the DMCA will not be processed. You are required to comply with the DMCA in using BackupMyServer's Services and presenting copyright complaints. Restrictions on Storage Space Usage 19.1. All accounts are subject to the following restrictions on storage space usage: a) accounts must have valid, working websites, and not violate any previously subscribed terms; b) accounts are not for use of mass storage of backups, files, audio, video, zip files or others, as determined by BackupMyServer, at its sole discretion; and c) accounts are not for use of mass distribution of files, such as torrents or mirrors. Any account found violating these terms may be suspended or terminated without warning. Multi-Location Hosting 20.1. BackupMyServer does not guarantee the availability of any and all host locations and reserves the right to add, move, modify, or remove any location at any time without notification. BackupMyServer also reserves the right to deny the transfer of any account to a new location for any or no reason. Warranties 21.1. Your Warranties to BackupMyServer 21.1.1. You represent and warrant to BackupMyServer that: (i) you have the experience and knowledge necessary to use the Services; (ii) you will provide BackupMyServer with material that may be implemented by it to provide the Services without extra effort on BackupMyServer's part; and (iii) you have sufficient knowledge about administering, designing, and operating the functions facilitated by the Service to take advantage of it. 21.1.2. You expressly warrant that you own the entire right, title and interest to, or have an appropriate license to use, all material provided to BackupMyServer, or which may be accessed or transmitted using the Services. You also warrant that to the extent you do business with other parties using the Services, that they have the same ownership interests in the materials provided to you, or accessed via you, that are set out in this paragraph. 21.2. BackupMyServer's Warranties 21.2.1. YOU EXPRESSLY AGREE THAT USE OF BackupMyServer'S SERVICES IS AT YOUR OWN RISK. THE SERVICES ARE PROVIDED AS-IS AND AS-AVAILABLE. OTHER THAN AS EXPRESSLY SET OUT IN THIS AGREEMENT, BackupMyServer HAS NOT, AND DOES NOT, MAKE ANY WARRANTIES WHETHER EXPRESS OR IMPLIED. THIS DISCLAIMER INCLUDES, BUT IS NOT LIMITED TO, THE WARRANTIES OR NON-INFRINGEMENT, FITNESS FOR A PARTICULAR PURPOSE, WARRANTIES OR MERCHANTABILITY, AND/OR TITLE. NEITHER BackupMyServer, ITS EMPLOYEES, AGENTS, THIRD-PARTY INFORMATION PROVIDERS, MERCHANTS LICENSERS OR THE LIKE, WARRANT THAT BackupMyServer'S SERVICES WILL NOT BE INTERRUPTED OR BE ERROR-FREE; NOR DO THEY MAKE ANY WARRANTY AS TO THE RESULTS THAT MIGHT BE OBTAINED FROM THE USE OF THE SERVICES OR AS TO THE ACCURACY, OR RELIABILITY, OF ANY INFORMATION SERVICE OR MERCHANDISE CONTAINED IN OR PROVIDED THROUGH BackupMyServer'S NETWORK, UNLESS OTHERWISE EXPRESSLY STATED IN THIS AGREEMENT. BackupMyServer SPECIFICALLY DISCLAIMS ANY AND ALL WARRANTIES REGARDING SERVICES PROVIDED BY THIRD PARTIES, REGARDLESS OF WHETHER THOSE SERVICES APPEAR TO BE PROVIDED BY BackupMyServer NO WARRANTIES MADE BY THESE THIRD PARTIES TO BackupMyServer SHALL BE PASSED THROUGH TO YOU, NOR SHALL YOU CLAIM TO BE A THIRD PARTY BENEFICIARY OF SUCH WARRANTIES. 21.2.2. THE WARRANTY DISCLAIMERS CONTAINED IN THIS AGREEMENT EXTEND TO ANY ORAL OR WRITTEN INFORMATION YOU MAY HAVE RECEIVED FROM BackupMyServer, ITS EMPLOYEES, THIRD-PARTY VENDORS, AGENTS OR AFFILIATES. YOU MAY NOT RELY ON SUCH INFORMATION. 21.2.3. SOME STATES DO NOT ALLOW BackupMyServer TO EXCLUDE CERTAIN WARRANTIES. IF THIS APPLIES TO YOU, YOUR WARRANTY IS LIMITED TO NINETY (90) DAYS FROM THE EFFECTIVE DATE. 21.3. The parties expressly disclaim the applicability of the United Nations Convention on the International Sale of Goods. Limitation of Liability 22.1. YOU ALSO ACKNOWLEDGE AND ACCEPT THAT ANY DAMAGES WILL BE LIMITED TO NO MORE THAN THE FEES PAID BY YOU FOR ONE (1) MONTH OF SERVICE. 22.2. UNDER NO CIRCUMSTANCES, INCLUDING NEGLIGENCE, SHALL BackupMyServer, ITS OFFICERS, AGENTS OR THIRD PARTIES PROVIDING SERVICES THROUGH BackupMyServer, BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, PUNITIVE OR CONSEQUENTIAL DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, COST SAVINGS, REVENUE, BUSINESS, DATA OR USE, OR ANY OTHER PECUNIARY LOSS BY YOU, ANY OF YOUR END USERS OR ANY THIRD PARTY; OR THAT RESULTS FROM MISTAKES, OMISSIONS, INTERRUPTIONS, DELETION OF FILES, ERRORS, DEFECTS, DELAYS IN OPERATION, OR TRANSMISSION OR ANY FAILURE OF PERFORMANCE, WHETHER OR NOT LIMITED TO ACTS OF GOD, COMMUNICATION FAILURE, THEFT, DESTRUCTION OR UNAUTHORIZED ACCESS TO BackupMyServer RECORDS, PROGRAMS OR SERVICES. YOU AGREE THAT THIS PARAGRAPH APPLIES EVEN IF BackupMyServer HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. YOU HEREBY ACKNOWLEDGE THAT THIS PARAGRAPH SHALL APPLY TO ALL CONTENTS ON ALL SERVERS AND ALL SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES; YOU AGREE THAT IN THOSE JURISDICTIONS, BackupMyServer'S LIABILITY WILL BE LIMITED TO THE EXTENT PERMITTED BY LAW. Indemnification 23.1. You agree to indemnify, defend and hold harmless BackupMyServer, subsidiary and affiliated companies, third party service providers and each of their respective officers, directors, employees, shareholders and agents (each an "indemnified party" and collectively, "indemnified parties") from and against any and all claims, damages, losses, liabilities, suits, actions, demands, proceedings (whether legal or administrative), and expenses (including, but not limited to, reasonable attorneys' fees) threatened, asserted, or filed by a third party against any of the indemnified parties arising out of, or relating to: (i) your use of the Services; (ii) any violation by you of any of BackupMyServer's policies; (iii) any breach of any of your representations, warranties or covenants contained in this Agreement; or (iv) any acts or omissions by you. The terms of this section shall survive any termination of this Agreement. For the purpose of this paragraph only, the terms used to designate you to include you, your customers, visitors to your website, and users of your products or services the use of which is facilities by BackupMyServer Governing Law and Disputes 24.1. This agreement shall be governed by the laws of the State of California, exclusive of its choice of law principles, and the laws of the United States of America, as applicable. Partial Invalidity 25.1. If any provision of this Agreement is held to be invalid by a court of competent jurisdiction, then the remaining provisions shall nevertheless remain in full force and effect. BackupMyServer and Customer agree to renegotiate any term held invalid and to be bound by mutually agreed substitute provision. Changes to the Terms of Service 26.1. BackupMyServer reserves the right to modify this Agreement, in whole or in part, from time-to-time. BackupMyServer will provide you with notices of such a change by posting a notice on your control panel. Unless BackupMyServer is required to make a change in an emergency, any change will be effective thirty (30) days after it is posted. If such a change materially diminishes your ability to use the Services, you may terminate this Agreement. You are encouraged to review the content of this Agreement on a regular basis. Assignment 27.1. This Agreement may be assigned by BackupMyServer It may not be assigned by you. This Agreement shall bind and inure to the benefit of the corporate successors and permitted assigns of the parties. Force Majeure 28.1. Except for the obligation to pay monies due and owing, neither party shall be liable for any delay or failure in performance due to events outside the defaulting party's reasonable control, including, without limitation, acts of God, earthquake, labor disputes, shortages of supplies, riots, war, fire, epidemics, failure of telecommunication carriers, or delays of common carriers or other circumstances beyond its reasonable control. The obligations and rights of the excused party shall be extended on a day-to-day basis for the time period equal to the period of the excusable delay. The party affected by such an occurrence shall notify the other party as soon as possible but in no event less than ten (10) days from the beginning of the event. No Waiver 29.1. No waiver of rights under this Agreement or any BackupMyServer policy or agreement between Customer and BackupMyServer shall constitute a subsequent waiver of this or any other right under this Agreement. No Agency 30.1. This Agreement does not create any agency, partnership, joint venture, or franchise relationship. Neither party has the right or authority to, and shall not, assume or create any obligation of any nature whatsoever on behalf of the other party or bind the other party in any respect whatsoever. HIPAA Disclaimer 31.1. We are not "HIPAA compliant." Users are solely responsible for any applicable compliance with federal or state laws governing the privacy and security of personal data, including medical or other sensitive data. Users acknowledge that the Services may not be appropriate for the storage or control of access to sensitive data, such as information about children or medical or health information. BackupMyServer does not control or monitor the information or data you store on or transmit through, our Services. We specifically disclaim any representation or warranty that the Services, as offered, comply with the federal Health Insurance Portability and Accountability Act ("HIPAA"). Customers requiring secure storage of "protected health information" under HIPAA are expressly prohibited from using this Service for such purposes. Storing and permitting access to "protected health information," as defined under HIPAA is a material violation of this User Agreement, and grounds for immediate account termination. We do not sign "Business Associate Agreements" and you agree that BackupMyServer is not a Business Associate or subcontractor or agent of yours pursuant to HIPAA. If you have questions about the security of your data, you should contact customer support. Last Updated: June 21st, 2019.