INFRASCALE CLOUD APPLICATION BACKUP SERVICE TERMS
These Infrascale Cloud Application Backup Service Terms (“ICAB Service Terms”) govern Your access to and use of the Infrascale Cloud Application Backup service (“ICAB”). These ICAB Service Terms supplement and amend the terms of the Customer Agreement (as defined below) in effect between You and Infrascale, Inc. (“Infrascale”). The “Customer Agreement” means the Partner Agreement, Distribution Agreement, Infrascale Customer Agreement or other agreement entered into by You and Infrascale which allows Your use and/or distribution of Infrascale Products, or if no such agreement is currently in effect, the agreement set forth at infrascale.com/legal/customer-agreement/ to which You hereby expressly agree. In the event of any conflict between the terms and conditions of these ICAB Service Terms and the Customer Agreement, the terms and conditions of these ICAB Service Terms will govern but only with respect to ICAB.
The terms “Customer,” “You,” “Your” and “Yours” refer to you. The terms “Infrascale,” “we,” “us” and “our” refer to Infrascale. ICAB shall be deemed a “Service” as such term is defined in the Customer Agreement. Capitalized terms used herein without definition shall have the meanings assigned to them in the Customer Agreement.
These ICAB Service Terms take effect upon the earlier of when You (i) enter into an Order for ICAB, (ii) click “I accept” or a similar button or check box presented to You as part of the ICAB enablement process, or (iii) first access or use ICAB, and will remain in effect until terminated in accordance with the provisions contained herein.
1. RIGHTS AND RESPONSIBILITIES.
1.1. Right to Use ICAB. Infrascale, with the assistance of Infrascale third-party service providers, will provide ICAB to You subject to the terms of these ICAB Service Terms.
1.1.1. Month-to-Month (Consumption-Based) Subscription. You may purchase a month-to-month subscription to ICAB (a “M2M Subscription”) in the ICAB Dashboard. Subject to the terms and conditions of these ICAB Service Terms, Your M2M Subscription entitles You to use ICAB on a month-to-month basis in accordance with the service configuration in the ICAB Dashboard. You’ll be charged based on the consumption of ICAB pursuant to Section 2.1.1. Your subscription to ICAB will continue on a month-to-month basis until terminated in accordance with the provisions of these ICAB Service Terms or the Customer Agreement.
1.1.2. Term & Quantity Subscription. You may purchase a subscription to ICAB with a fixed term and a specific minimum quantity commitment (a “Term Subscription”) via an Order. Subject to the terms and conditions of these ICAB Service Terms and as set forth in an Order with You, Your Term Subscription entitles You to use ICAB in accordance with the term and quantity (the “Minimum Quantity Commitment”) specified in Your Order and per the service configuration in the ICAB Dashboard. You’ll be charged for the Minimum Quantity Commitment (irrespective of actual use) plus any consumption of ICAB in excess of the Minimum Quantity Commitment pursuant to Section 2.1.2. Your subscription to ICAB will continue for the duration of the applicable Service Term (including any renewal terms thereof) unless earlier terminated in accordance with the provisions of these ICAB Service Terms or the Customer Agreement.
1.2. Limitations on Use. Your use of ICAB shall be in accordance with the following: (i) solely for Your use or, where You have been authorized to use ICAB on behalf of a company, solely for Your use on behalf of such company; or (ii) where You are a Partner or Distributor of Infrascale’s Products, use on behalf of Your end users, where You have been authorized to set up and use ICAB on behalf of such end users. You may use ICAB only for purposes consistent with these ICAB Service Terms. Any fraudulent, abusive or otherwise illegal activity may be grounds for termination of Your right to use ICAB at Infrascale’s sole discretion. Except to the extent permitted by applicable law, You agree not to (a) modify, distribute, prepare derivative works of, reverse engineer, reverse assemble, disassemble, decompile or attempt to decipher any code relating to ICAB and/or Infrascale technology; (b) knowingly or negligently access or use ICAB in a manner that abuses or disrupts the Infrascale networks, security systems, user accounts, or services of Infrascale or any third party, or attempt to gain unauthorized access to any of the above through unauthorized means; (c) transmit through ICAB any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise unlawful; (d) market, offer to sell, and/or resell ICAB except to the extent permitted by Section 1.2(ii); and (e) make available for processing or submit any Protected Health Information as defined in the Health Insurance Portability and Accountability Act (HIPAA) or information protected under similar regulations.
1.3. Your Responsibilities. If You become aware or receive notice from Infrascale that Your or Your end users’ access to or use of ICAB violates Section 1.2 above, You must take immediate action to remediate the violation. If You fail to promptly remediate the violation, or if You materially breach any of the terms or conditions of these ICAB Service Terms, Infrascale may suspend Your and/or Your end users’ access to and use of ICAB. You are responsible for all usage and activity on Your account, with or without Your knowledge or consent, including use of the account by any third party authorized by You to use the account.
2. FEES AND PAYMENT.
2.1. Fees. Notwithstanding anything contained in the Customer Agreement to the contrary, Infrascale will issue an invoice to You for fees due for ICAB in accordance with Section 2.2 below. All monthly fees for ICAB (whether for a M2M Subscription or a Term Subscription) will generally be due in advance (fees due for consumption-based use are based on use during the previous Billing Cycle (as defined below)). Fees are exclusive of all sales, use, excise, value added, withholding and other taxes, and all such taxes, customs duties and tariffs now or hereafter claimed or imposed by any governmental authority upon ICAB will be paid by You.
2.1.1. M2M Subscription. Your and/or Your end users’ use of ICAB constitutes Your agreement to be invoiced for and pay for all ICAB consumption rounded up to the pre-configured pack levels (e.g., 10-user packs or 100 GB storage packs) at the ICAB pricing set forth in Your Order, or if not set forth therein, the pricing then in effect as specified on the ICAB price list. Fees due for each Billing Cycle shall be based on Your and Your end users’ ICAB consumption on a specific day each month, without regard to varying consumption levels throughout the Billing Cycle. Infrascale reserves the right to change the ICAB price list at any time, and any such change in pricing will not be effective until at least thirty (30) days following notice to You of such change.
2.1.2. Term Subscription. Fees due for each Billing Cycle shall be based on (i) the applicable monthly subscription fees for ICAB as set forth in Your Order, and (ii) Your and Your users’ consumption of ICAB in excess of the number of seats or amount of storage (as applicable) You’re entitled to use pursuant to the terms of Your ICAB Term Subscription. Such excess consumption shall be invoiced in accordance with the terms of Section 2.1.1 above.
By way of example only:
Example 1: If Your subscription to ICAB entitles You to use 2000 seats and You use 1950 seats, You will be invoiced for the monthly subscription fees per Your Order and no additional consumption-based fees.
Example 2: If Your subscription to ICAB entitles You to use 2000 seats and You use 2291 seats, You will be invoiced for the monthly subscription fees per Your Order plus consumption of an additional 300 seats (291 seats rounded up to the pre-configured pack level) at the ICAB pricing specified on the ICAB price list in accordance with the terms of Section 2.1.1.
2.2. Billing. At the start of each Billing Cycle, Infrascale will invoice You in advance for all ICAB subscription fees due for the period covered by such Billing Cycle, as further described in Sections 2.1.1 and 2.1.2, as applicable. A “Billing Cycle” is the interval of time from the end of one billing or invoice to the next billing or invoice and shall typically be one (1) month (for example, April 1st to April 30th); provided, the Billing Cycle for the first month of Your M2M Subscription will typically reflect fees due from the commencement of Your M2M Subscription until the last day of the following calendar month. You agree to make full payment of all such fees within thirty (30) days of the invoice date. ICAB consumption cannot always be processed right away and may be included in a later invoice. All purchases are final and subscription fees are non-refundable. Infrascale reserves the right, in its discretion, to suspend or terminate ICAB or any portion thereof for non-payment or late payment of fees (including if payment is late due to a credit card chargeback or insufficient funds). If You non-renew/cancel Your M2M Subscription to ICAB, You will be charged subscription fees for the duration of Your Service Term pursuant to Section 3.2.1 and You will continue to have access to ICAB until the end of such Service Term. You may not cancel a Term Subscription prior to the end of the Service Term except for cause in accordance with Section 3.3 below or the provisions of the Customer Agreement.
3. TERM AND TERMINATION.
3.1. Term. M2M Subscriptions will be in effect for one (1) month; Term Subscriptions will be in effect for the initial service term identified on the Order or selected in Your Account, as applicable (each, the “Initial Service Term“). Your subscription is auto-renewing and Your purchase constitutes Your agreement to the auto-renewal of Your subscription for (i) successive one (1) month terms if You have a M2M Subscription, and (ii) successive one (1) year terms with the same Minimum Quantity Commitment if You have a Term Subscription (each term of a renewal, the “Renewal Term” and collectively with the Initial Service Term, the “Service Term”). You maintain the right to give email notice of non-renewal to Infrascale at Support@Infrascale.com at least thirty (30) days prior to the end of the then-current term. Each invoice for M2M Subscriptions shall constitute an auto-renewal notice for such subscriptions. All Orders, including for renewals, are subject to acceptance by Infrascale in its discretion.
3.2. Termination for Convenience. With respect to M2M Subscriptions only, either party may terminate these ICAB Service Terms and Your right to use ICAB at any time for convenience by notifying the other party in accordance with the notice provisions specified in the Customer Agreement or You may cancel via the ICAB management tool inside the Dashboard. Such termination shall take effect at the end of the then-current Service Term.
3.3. Termination for Cause. Infrascale may terminate these ICAB Service Terms and Your access to and right to use ICAB immediately, without prior notice or liability, (i) if You materially breach any of the terms or conditions of these ICAB Service Terms, (ii) if our relationship with a third-party partner who provides software or other technology we use to provide ICAB expires, terminates or requires us to modify the way we provide the software or other technology as part of ICAB, (iii) in order to comply with applicable law or requests of governmental entities, or (iv) pursuant to the terms of the Customer Agreement.
3.4. Effect of Termination. Any termination of the Customer Agreement shall also serve to terminate these ICAB Service Terms; however, termination of these ICAB Service Terms shall not terminate the Customer Agreement. Upon termination of these ICAB Service Terms, (i) the rights granted by Infrascale to You to access and use ICAB will immediately cease, (ii) You will immediately discontinue all access and use of ICAB, and (iii) all Fees owed by You to Infrascale shall become immediately due upon receipt of the final invoice. Infrascale has no obligation to maintain Your Content following termination of these ICAB Service Terms. Provided You are in compliance with all of the terms and conditions of these ICAB Service Terms and the Customer Agreement, You will have thirty (30) days to download Your and Your end users’ Content following termination. To do so, please contact firstname.lastname@example.org for download access and instructions. Neither party shall be liable for any damages resulting from termination in accordance with the terms hereof, including without limitation unavailability of Your or Your end users’ Content arising therefrom; provided, however, termination shall not affect any claim arising prior to the effective termination date. Section 2 shall survive any termination of these ICAB Service Terms.
We may modify these ICAB Service Terms at any time by posting a revised version on the Infrascale website or by otherwise notifying You in accordance with the notice provisions in the Customer Agreement. The modified terms will become effective upon posting or, if we notify You by email, as stated in the email message. By continuing to use ICAB after the effective date of any modifications to these ICAB Service Terms, You agree to be bound by the modified terms. It is Your responsibility to check the Infrascale website regularly for modifications to these ICAB Service Terms. We last modified these ICAB Service Terms on the date listed at the bottom of these terms.
Last revised June 22, 2022.
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