RESTBACKUP.COM TERMS OF USE PLEASE READ THESE TERMS OF USE CAREFULLY Date Last Revised: September 30, 2010 1. ACCEPTANCE OF TERMS OF USE a. Rest Backup LLC ("Company") owns and runs the website www.restbackup.com (the "Site") through which it offers various services and software (the Site, services and software are collectively referred to as the "Service" or "Services"). b. By creating a user account to access and use the Services ("Account"), you and, if applicable, the company or other legal entity you represent (collectively, "you"), agree to be bound by these Terms of Use. If you do not agree to all of the terms and conditions contained in these Terms of Use, do not use the Services in any manner. Company reserves the right to limit or terminate your access to the Services if you do not comply with these Terms of Use. c. Company does not knowingly permit individuals under the age of 18 to create an Account. Do not attempt to create an Account if you are under 18. Please see our Privacy Notice for additional information. d. Company reserves the right, at its sole discretion, to change, modify, update, add, or remove portions of the Terms of Use at any time, with or without notice to you. Please check www.restbackup.com/terms for period changes to these Terms of Use. Your continued use of the Services after the posting of any changes to the Terms of Use or after our sending of notice of any changes or updated policy to you means that you have accepted those changes. 2. LICENSE a. Company Properties. We may make available to you, for your installation, copying and/or use in connection with the Services, from time to time, a variety of software, data and other content and printed and electronic documentation (all such materials except those specifically made available by us under separate license terms, the "Company Properties"). Subject to your acceptance of this Agreement and payment if and as required for your right to use the Services, we hereby grant to you, without the right to sublicense, a limited, non-exclusive, non-transferable license during the Term, under our intellectual property or proprietary rights in the Company Properties, only to install, copy and use the Company Properties solely in connection with and as necessary for your use of such Services and solely to the extent that such install, copy or use of the Company Properties is in compliance with all the terms and conditions of this Agreement. The Company Properties may include, without limitation: - Proprietary application programming interfaces ("APIs"); - Developer tools for use in connection with the APIs; - Articles and documentation for use in connection with the use and implementation of the APIs (collectively, "Documentation"); - Specifications describing the operational and functional capabilities, use limitations, technical and engineering requirements, and testing and performance criteria relevant to the proper use of a Service and its related APIs and other technology; - Textual materials made available as part of the Service ("Text Materials"); and - Other forms of digital content, data, text, images, logos, user interface designs and other creative designs, audio and video (with the Text Materials, collectively, "Company Content"). b. Use of Marks. Your use of any trademarks, service marks, service or trade names, logos, and other designations of Company and its affiliates or licensors ("Marks") may not be used, copied, reproduced, distributed, transmitted, broadcast, displayed, sold, licensed, or otherwise exploited for any other purposed whatsoever without the prior written consent of the respective owners. You may not use any trademark, service mark, trade name or other business identifier of Company or its affiliates unless you obtain Company's or its affiliates' prior written consent. In addition, you agree not to misrepresent or embellish the relationship between us and you, for example by implying that we support, sponsor, endorse, or contribute money to you or your business endeavors. c. Nonexclusive Rights. The rights granted by Company in this Agreement with respect to the Company Properties, the Marks and the Services are nonexclusive, and Company reserves the right to: (i) itself act as a developer of products or services related to any of the products that you may develop in connection with the Company Properties or via your use of the Services; and (ii) appoint third parties as developers or systems integrators who may offer products or services which compete with Company or your Applications (as defined in Section 6 below). 3. TERM AND TERMINATION a. Term. The term of this Agreement ("Term") will commence, and you may begin using the Services, once you agree to the terms and conditions of this Agreement by selecting the "I agree" box during the registration process for your Account. The Agreement will remain in effect until terminated by you or us in accordance with Section 13. b. Termination of Agreement. Upon termination of this Agreement for any reason, you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services and all of your rights under this Agreement shall immediately terminate. 4. ACCOUNTS AND ACCESS URLS a. Account Identifiers. Your Account is associated with one or more access URLs, which are used to access the Service. When you complete the account creation process, you will be issued unique account identifiers ("Account Identifiers"), and may add access URLs to your Account. Account Identifiers identify your account and allow you to make requests to Company. The Account Identifier is immutable and will always uniquely identify your Company account. Access URLs are unique to your account and are subject to change. You are responsible for maintaining the secrecy and security of your access URLs. You may, however, share your access URLS with one or more third parties; provided, that such third parties are your agents (employees, contractors or consultants) or your customers as may be evidenced by a customer service agreement or similar writing. You are fully responsible for all activities that occur under your Account Identifiers, regardless of whether such activities are undertaken by you or a third party, including all activity which may result in a financial cost or charge to your Account. Therefore, you should contact us immediately if you believe a third party may be using your access URL without your permission, or if your access URL is otherwise lost or stolen. b. Updating Account Information. You are responsible for maintaining up-to-date and accurate information (including contact information) for your Account. We are not responsible for any unauthorized access to, alteration of, or the deletion, destruction, damage, loss or failure to store any of Your Content (as defined in Section 6 below) or other data that you submit or use in connection with your Account or the Services. 5. FEES a. Service Fees. In consideration of your use of any of the Services, you agree to pay any applicable fees that the Company may charge in the amounts set forth on the respective Service detail pages on the Site (including any minimum subscription fees). Fees for any new Service or new Service feature will be effective upon posting by us on the Site for the applicable Service. We may increase or add new fees for any existing Service or Service feature, or implement a fee for any previously free Service or free Service feature, by giving you 30 days advance notice. Such notice will be posted on the Site on the Service detail page. You agree that you are responsible for checking the Site each month to confirm whether there are any new fees and their effective date(s). All fees payable by you are exclusive of applicable taxes and duties, including, without limitation, VAT and applicable sales tax. You will provide such information to us as reasonably required to determine whether we are obligated to collect VAT from you, including without limitation your VAT identification number. b. Payment. We may specify the manner in which you will pay any fees, and any such payment shall be subject to our general accounts receivable policies in effect, from time to time. All amounts payable by you under this Agreement will be made without setoff or counterclaim and without deduction or withholding. If any deduction or withholding is required by applicable law, you shall notify us and shall pay such additional amounts to us as necessary to ensure that the net amount that we receive, after such deduction and withholding, equals the amount we would have received if no such deduction or withholding had been required. Additionally, you shall provide us with documentation that the withholding and deducted amounts have been paid to the relevant taxing authority. c. Discounts. From time to time, we may offer free or discounted pricing for data transfer, data storage, and other usage of the Services (a "Special Pricing Program"). After a Special Pricing Program ends, normal charges will apply. You must comply with any additional terms, restrictions, or limitations (e.g., limitations on the total amount of usage) we impose in connection with the Special Pricing Program as described on the Service detail pages on the Site. You may not sign-up for multiple Company Accounts in order to receive additional benefits under a Special Pricing Program. We may immediately terminate any Account that we determine, in our sole discretion, is established or used to avoid the terms, restrictions, or limitations applicable to a Special Pricing Program. 6. RESTRICTIONS ON USE OF THE SERVICES a. Prohibited Activities. (1) You may not do any of the following to the Services: (i) Use any robot, spider scraper, deep link, or other similar automated data gathering or extraction tools, programs, algorithms, or methodology to access, acquire, copy, or monitor the Site or a portion of the Site without the prior written consent of Company, which consent may be withheld for any or no reason; (ii) Use the Services in any manner that could damage, disable, overburden, disrupt or impair the Services or any Company server, or the network(s) connected to any Company server, or interfere with any other party's use and enjoyment of the Services; (iii) Disobey any applicable policies or regulations of networks connected to the Services; (iv) Modify, alter, adapt, translate, disassemble, decompile, or reverse engineer the Services, or apply any other process or procedure to derive the source code of any software included in or accessed via the Service; (v) Frame the Services or reformat them in any way; (vi) Create user accounts using any automated means or under false pretenses; or (vii) Due to the individualized nature of the information provided by the Service, share or provide information regarding your user account, including your access URL, with anyone. (2) You may not use the Services to do any of the following: (i) Harass or advocate harassment of another person or entity; (ii) Perform any activities that violate, intentionally or unintentionally, any applicable state, local, federal, or international laws or regulations promulgated by governmental agencies that have the force of law; (iii) Provide resources to or otherwise support any organization(s) designated by the United States government as a foreign terrorist organization under section 219 of the Immigration and Nationality Act; (iv) Impersonate any person or entity or misrepresent in any way your affiliation with a person or entity; (v) Transmit unsolicited mass mailings or "spam;" or (vi) Transmit any virus, worm, defect, Trojan horse or similar destructive or harmful item. b. Permitted Activities. (1) You may write or develop software, web sites, application programming interfaces or other online services or technology that you store in, or that interface with, the Services (collectively "Applications"). You acknowledge that we may change, deprecate or republish APIs for any Service or feature of a Service from time to time, and that it is your responsibility to ensure that calls you make to any Service are compatible with then-current APIs for the Service. You further acknowledge that we may change or remove features or functionality of the Services at any time. (2) You may enable access and use of Your Content by your end users in accordance with the terms of this Agreement. "Your Content" means any Application, data or other content that you may (a) provide to us pursuant to this Agreement, (b) make available to any end users in conjunction with the Services, or (c) develop, or use in connection with the Services. Your Content includes, but is not limited to, software, data, and content that you or your end users upload to our systems as a part of an Application. You are responsible for all terms and conditions applicable to Your Content. (3) You may make network calls or requests to the Services at any time that the Services are available, provided that no such call or request exceeds the maximum file size that may be established for the Services as provided on the Service detail page of the Site, from time to time. 7. SERVICE INTERRUPTIONS In addition to our rights to terminate Services to you as described in Section 14 below, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) Company shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that Company determines that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Company shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. We may, but are not required to, provide you email notice of any Service Suspension in accordance with the notice provisions set forth below and to post updates on the Site regarding resumption of Services following any such suspension; provided, however, Company shall have no liability for the manner in which any such notice is posted or if Company fails to do so. 8. SECURITY We strive to keep Your Content secure, but cannot guarantee that we will be successful at doing so, given the nature of the Internet. Accordingly, without limitation to Section 2 above and Section 10 below, you acknowledge that you bear sole responsibility for adequate security, protection and backup of Your Content and Applications. We strongly encourage you, where available and appropriate, to (i) use encryption technology to protect Your Content from unauthorized access, (ii) routinely archive and maintain backups of Your Content, and (iii) keep your Applications or any software that you use or run with our Services current with the latest security patches or updates. We will have no liability to you for any unauthorized access or use, corruption, deletion, destruction or loss of any of Your Content or Applications. 9. COPYRIGHT POLICY a. In addition to any other use restrictions set forth in this Agreement, you may not engage in or facilitate the posting, modification, distribution, or reproduction of any copyrighted material, trademarks, or other proprietary information belonging to others without obtaining the prior written consent of the owner of such proprietary rights. It is the policy of Company to terminate all privileges of any user who repeatedly infringes the copyright rights of others upon receipt of prompt notification to Company by the copyright owner or the copyright owner's legal agent. b. Without limiting the foregoing, if you believe that your work has been copied and posted on the Services in a way that constitutes copyright infringement, please contact us with the following information: (i) A physical or electronic signature of a person authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. (ii) Identification of the copyrighted work claimed to have been infringed, or, if multiple copyrighted works at a single online site are covered by a single notification, a representative list of such works at that site. (iii) Identification of the material that is claimed to be infringing or to be the subject of infringing activity and that is to be removed or access to which is to be disabled, and information reasonably sufficient to permit the service provider to locate the material. Providing URLs in an email enables us to most efficiently locate and remove the infringing material. (iv) Information reasonably sufficient to permit the service provider to contact the complaining party, such as an address, telephone number, and, if available, an electronic mail address at which the complaining party may be contacted. (v) A statement that the complaining party 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. (vi) A statement that the information in the notification is accurate, and under penalty of perjury, that the complaining party is authorized to act on behalf of the owner of an exclusive right that is allegedly infringed. Notice should be provided to legal@restbackup.com, or by mail to Sophos Law Firm, PLLC, Attn: Tolis Dimopoulos, 4444 Woodland Park Avenue N., Suite 211, Seattle, Washington 98103. 10. PRIVACY Company respects your privacy. Company's Privacy Notice can be found at http://www.restbackup.com/privacy. By using the Services, you are consenting to the terms of our Privacy Notice. 11. THIRD PARTY WEBSITES, SERVICES, AND CONTENT a. The Services may contain links to third-party sites that are not under the control of Company, and Company is not responsible for nor does it guarantee the accuracy or integrity of, the content(s) of any linked site or any link contained in a linked site, or any changes or updates to such sites. The inclusion of any link does not imply that Company endorses or accepts any responsibility for the content on any third-party site. Your correspondence or business dealings with, or participation in promotions of, any third party website found through the Services, including payment and delivery of related goods or services, and any other terms, conditions, warranties or representations associated with such dealings, are solely between you and such third party. Company is not responsible or liable for any loss or damage of any kind incurred as the result of any such dealings or as the result of the presence of links to such third party websites on the Services. b. In addition, links to advertising that has not been approved by Company may be embedded in third party content displayed on the Services. Company is not responsible for any content, cookies, or other technology used in connection with such advertising. 12. DISCLAIMER OF WARRANTY AND LIMITATION OF LIABILITY; ABILITY TO CHANGE OR TERMINATE SERVICES a. EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, THE SERVICES AND ALL INFORMATION ARE PROVIDED "AS-IS" WITHOUT WARRANTY OF ANY KIND AND COMPANY HEREBY DISCLAIMS ALL WARRANTIES EITHER EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO IMPLIED WARRANTIES OF MERCHANTABILITY OR FITNESS FOR A PARTICULAR PURPOSE. IN ADDITION, EXCEPT AS EXPRESSLY PROVIDED OTHERWISE, COMPANY DISCLAIMS ANY WARRANTIES OF NON-INFRINGEMENT, TITLE, OR QUIET ENJOYMENT. Because some jurisdictions do not allow the exclusion of implied warranties, some of these exclusions may not apply to you. If any state or other jurisdiction does not allow the exclusion of warranties, then Company's warranties shall be limited in those jurisdictions to the extent permitted by law. b. IN NO EVENT SHALL COMPANY BE LIABLE FOR ANY SPECIAL, INDIRECT, CONSEQUENTIAL, EXEMPLARY, LIQUIDATED, OR PUNITIVE DAMAGES, OR ANY DAMAGES WHATSOEVER, INCLUDING BUT NOT LIMITED TO LOSS OF USE, DATA OR PROFIT, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTIOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OF THE SERVICES OR INFORMATION AVAILABLE FROM THE SERVICES, EVEN IF COMPANY HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. NOTWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, COMPANY'S LIABILITY TO YOU FOR ANY CAUSE WHATEVER AND REGARDLESS OF THE FORM OF THE ACTION, WILL AT ALL TIMES BE LIMITED TO THE AMOUNT PAID, IF ANY, BY YOU TO COMPANY FOR THE SERVICES DURING THE TERM OF YOUR USE OF THE SITE. If any state or other jurisdiction does not allow the exclusion or limitation of liability for damages, then Company's liability shall be limited in those jurisdictions to the extent permitted by law. d. Company may terminate or make changes to all or any portion of the Services, product offerings, and any other information and materials available on or through the Services at any time and without notice or liability. 13. INDEMNITY You agree to indemnify, defend, and hold Company and its affiliates, officers, agents, co-branders, partners, and employees harmless from any claim or demand made by any third party due to or arising out of your use of the Services, your connection to the Services, your violation of the Terms of Use or Privacy Notice, or your violation of any rights of other users of the Services. Any such indemnification shall include the payment of reasonable attorney's fees incurred in the defense of such claim. 14. TERMINATION OF ACCESS TO SITE; CONSEQUENCES OF VIOLATION OF TERMS OF USE a. Termination by Company. Company reserves the right to terminate your privilege to use the Services at any time, for any reason. In addition, Company shall have the right to (i) remove any material that in its sole opinion may violate, or that is alleged to violate, any applicable law or these Terms of Use; (ii) terminate any portion of the Services, and/or remove a user or users or otherwise terminate any use of the Services if Company determines in its sole discretion that such use is unlawful and/or prohibited by these Terms of Use; and (iii) inform law enforcement of any illegal activity or material Company suspects or discovers on, through, or otherwise relating to the Services and provide law enforcement officials with all requested information about the user account from which the illegal activity or material originated. b. Effect of Termination. Upon the termination of your use of the Service, in whole or in part, for any reason, you remain liable for all fees, charges and any other obligations you have incurred through the date of termination with respect to the Services; and all of your rights with respect to the applicable Services shall be terminated. 15. NOTICES a. We may be required by state or federal law to notify you of certain events. In addition, we may need to notify you from time to time regarding changes to these Terms of Use or to the Services. You agree that such notices will be effective upon our posting them on the Site, sending them to you through email or postal mail, or notifying you via other means required by law. If you do not provide us with accurate information to contact you, we will not be held liable if we fail to notify you. b. You consent to receiving any notices regarding the Terms of Service or the Privacy Notice or any notice required by law, including notice of any breach of security involving your personally identifiable information, through email. c. Any notices that we send to you by email will be sent to the email address you provided when you registered for an account or the email address in your profile. 16. GENERAL INFORMATION a. Entire Agreement. The Terms of Use, the Privacy Notice and any applicable guidelines or additional terms posted on the Services constitute the entire agreement between you and Company, govern your use of the Services, and supersede any prior agreements between you and Company relating to your use of the Services (including, but not limited to, any prior versions of the Terms of Use or Privacy Notice). If you sign up or register for additional Company services that use third-party content or third-party software, you may also be subject to additional terms and conditions that apply to such third-party content or third-party software. b. Governing Law. By accessing the Services you agree that the statutes and laws of the United States and the State of Washington, without regard to any principles of conflicts of law, will apply to all matters relating to the use of the Services, and you further agree that any litigation shall be subject to the exclusive jurisdiction of the state and federal courts in King County in the State of Washington, and you consent to the personal jurisdiction of those courts. c. Waiver. The failure of Company to exercise or enforce any right or provision of the Terms of Use does not constitute a waiver of such right or provision. d. Severability. If a court of competent jurisdiction finds any provision of the Terms of Use to be invalid, the parties nevertheless agree that the court should endeavor to give effect to the parties' intentions as reflected in the provision, and that the other provisions of the Terms of Use remain in full force and effect. e. Headings. All headings in the Terms of Use are for convenience only and have no legal or contractual effect. f. Dispute Resolution. Any legal controversy or legal claim arising out of or relating to this Agreement or the Service, excluding legal action taken by Company to collect fees or recover damages for, or obtain an injunction relating to Company's intellectual property or the Service, will be settled by binding and final arbitration in accordance with the commercial arbitration rules of the American Arbitration Association. Any controversy or claim will be arbitrated on an individual basis, and will not be consolidated in any arbitration with any claim or controversy of any other party. The arbitration will be conducted in King County, Washington, and judgment on the arbitration award may be entered into any court having jurisdiction. Either you or Company may seek any interim or preliminary relief from a court of competent jurisdiction in King County, Washington necessary to protect the rights or property of you or Company pending the completion of arbitration. Should either party file an action contrary to this provision, the other party may recover attorney's fees and costs. 17. COMMENTS AND QUESTIONS If you have any comments or questions, you may address them to Rest Backup LLC, Attn: Michael Leonhard, 800 5th Ave. #101-436, Seattle, WA 98104, or by email at mike@restbackup.com.