INFRASCALE CLOUD APPLICATION BACKUP SERVICE TERMS
These Infrascale Cloud Application Backup Service Terms (“ICAB Service Terms”) govern your purchase 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 previously 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 when you click “I accept” or a similar button or check box presented to you as part of the ICAB enablement process or when you first access or use ICAB, whichever is earlier, and will remain in effect until terminated in accordance with the provisions contained herein.
RIGHTS AND RESPONSIBILITIES.
1.1. Right to Use ICAB. Subject to the terms and conditions of these ICAB Service Terms, you may access and use ICAB in accordance with the service configuration in the ICAB Dashboard until your right of use is terminated in accordance with the provisions contained herein. Your use of ICAB shall be in accordance with the following: (i) solely for your use; or (ii) solely for your use on behalf of your company, where you have been authorized to use ICAB on behalf of such company; or (iii) 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. Your subscription to ICAB will continue on a month-to-month basis until cancelled in accordance with the termination provisions contained herein.
Infrascale, with the assistance of Infrascale third-party service providers, will provide ICAB to you subject to the terms of these ICAB Service Terms.
1.2. Limitations on Use. 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 (i) 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; (ii) 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; (iii) transmit through ICAB any material that is deemed abusive, harassing, obscene, slanderous, fraudulent, libelous or otherwise unlawful; (iv) market, offer to sell, and/or resell ICAB except to the extent permitted by Section 1.1; and (v) 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.
FEES AND PAYMENT.
2.1. Fees. 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 the Customer Agreement, or if not set forth therein, the pricing then in effect as specified on the ICAB price list (“Fees”). Fees due for each Billing Cycle (as defined below) 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. 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, January 15th to February 14th). 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. Infrascale reserves the right to change pricing 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.
2.2. Billing. Following the end of each Billing Cycle, Infrascale will invoice you for all Fees accrued during the previous Billing Cycle. You will typically be invoiced within two (2) weeks of the end of the previous Billing Cycle, and 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 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 cancel your subscription to ICAB prior to the end of a Billing Cycle, you will be charged Fees for the entirety of that Billing Cycle and the cancellation will become effective on the last day of that Billing Cycle.
3.1. Termination for Convenience. 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 Billing Cycle.
3.2. 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, or (iii) in order to comply with applicable law or requests of governmental entities.
3.3. 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 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 Data 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 Data 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, including without limitation unavailability of your Data 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 top of these terms.
Last revised May 19, 2020.
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