ZipCloud Terms And Conditions
ZipCloud Products and Services Terms and Conditions of Use Updated and effective as of May 18, 2013. READ THIS AGREEMENT CAREFULLY.
1. Definition of TermsAs used in these Terms and Conditions of Use: "Backup Data" includes any data you back up through Use of the ZC Products or Services and any related data that are in the possession of ZC or ZC Affiliates. "ZC," "we," "us," or "our" (whether or not capitalized) mean ZC and its subsidiaries. "ZC Affiliate" means persons or entities who have provided products, licenses, or services to ZC and persons or entities with which ZC has entered into an agreement to sublicense or to provide ZC Products or Services to users. "ZC Products or Services" means data backup services, websites (including without limitation, www.zipcloud.com), all other documentation, features, tools, ZC Software, and any other products or services provided by ZC or its authorized agents, distributors, and licensees. "ZC Software" means software provided to you or for your use by ZC. "Computer" (whether or not capitalized) means a desktop or laptop computer, network device, and any storage device attached to them in any fashion. "Days" (whether or not capitalized) means calendar days. "Personal Information" means information that you may provide at the time of registration or otherwise, such as name, physical location or address, IP address, e-mail address, employment, or similar information that identifies you as a specific individual. 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, or by posting them to www.zipcloud.com or any other website you visit to register for, subscribe to, license, buy, or Use ZC Products or Services. The "Subscription Period" for any license to use ZC Products or Services begins at purchase, regardless of the date of activation, and expires at the end of your specific purchased term. A specific purchased term may be monthly, yearly, multi-year or for another periodic metric. For example, if you are billed on a monthly basis, your Subscription Period is for the month billed. To "Use" or "Using" ZC Products or Services means each time you visit a ZC website, register with ZC, download ZC Software, use ZC Software to encrypt or back up data, view the status of your Backup Data, store or restore Backup Data, access any Backup Data or request support. "You," "yourself", "user," and "customer" (whether or not capitalized) refer to the individual or legal entity registering for or using the ZC Products or Services.
2. Acceptance of Terms and Conditions of Use; Modification; CancellationBy registering to Use ZC Products or Services, and each time you Use a ZC 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 ZC Products or Services and thereafter, as noted in Section 6 (ZC License to You; Renewals, etc.) below. If you do not agree to these Terms and Conditions of Use in their entirety, do not Use ZC Products or Services. ZC 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 after we publish them on our website at www.zipcloud.com. If you do not agree to be bound by ZC's Terms and Conditions of Use as Published by ZC from time to time, your sole and exclusive remedy is to discontinue using ZC Products or Services. If you wish to cancel your ZC license after a change in the Terms and Conditions of Use, you must do so in writing or by email within thirty (30) days after your next Use of a ZC 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 for the unused portion of your ZC license as of 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, ZC may delete any information that ZC has obtained through your Use of ZC Products or Services, including without limitation, your Backup Data, and ZC will not have any Backup Data available for your Use. Cancelled accounts will have all information deleted immediately upon cancelling.
3. Requirements for Registration or Use of ZC ProductsZC 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 for such products or services. ZC does not offer ZC Products or Services to minors or where prohibited by law. By registering for and/or by Using ZC 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 ZC Terms and Conditions of Use and that you will Use ZC Products or Services only in accordance with these Terms and Conditions of Use and with all applicable laws. If an individual is registering or Using ZC Products or Services on behalf of an entity or organization, that individual warrants, represents, and covenants to ZC that such individual is duly authorized to agree to these Terms and Conditions of Use on behalf of the organization and to bind the organization to them. If an individual uses ZC Products or Services that are provided by any third party including any person, entity or organization, the individual Using the ZC Products or Services, by virtue of such use, agrees that any information the individual provides to ZC (including but not limited to the individual's Backup Data and Personal Information) will be accessible to, and may be viewed, changed, or deleted by the person, entity or organization that provided the ZC Products or Services to the individual. You agree to provide accurate and complete information when you register for a ZC Product or Service and you agree to keep such information accurate and complete during the entire time that you Use ZCProducts or Services. We may ask you from time to time to establish a user name or password to access or Use the ZC 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 ZC Products or ServicesYou may not Use ZC Products or Services for any unlawful purpose. Without limiting the foregoing:
(a) ZC 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.
(b) You may not Use ZC 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, Iraq, Morocco, Nigeria, Tunisia, Pakistan, Algeria, Afghanistan, Saudi Arabia, or any other country to which the United States has prohibited export. Each time you Use ZC Products or Services you represent, warrant, and covenant that: (i) 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; (ii) You will not download or otherwise export or re-export the ZC Software, directly or indirectly, to the above mentioned countries nor to citizens, nationals or residents of those countries; (iii) 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; (iv) You will not download or otherwise export or re-export the ZC Software, directly or indirectly, to persons on the above mentioned lists; (v) You will neither Use nor allow the ZC 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; (vi) The ZC Software will not be exported, directly, or indirectly, in violation of these laws, nor will the ZC Products or Services be Used for any purpose prohibited by these laws including, without limitation, nuclear, chemical, or biological weapons proliferation; and (vii) You are not using or permitting others to Use ZC Products or Services to create, store, backup, distribute, or provide access to child pornography.
5. Changes to the ZC Products or ServicesZC has the right at any time to change, modify, add to, discontinue, or retire any ZC Product or Service and any aspect or feature of the ZC 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 ZC servers on your behalf either cumulatively or for any particular service, or the availability of ZC Products or Services on any particular device or communications service. ZC will provide notice of material changes to the ZC Products or Services or changes to this Agreement by posting them to www.zipcloud.com . ZC shall have no obligation to provide you with notice of any such changes in any other manner. It shall be your responsibility to check our website periodically to inform yourself of any such changes. From time to time, ZC may issue new releases, revisions, or enhancements to the ZC 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 ZC 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. ZC may automatically update ZC 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, ZC may, in its sole discretion, terminate your current license, continue to support your current ZC Products or Services without the automatic update, or replace your ZC Products or Services with other ZC Products or Services. If ZC terminates your current license on account of your failure or refusal to approve such fees, then ZC will refund, on a pro-rata basis based on the remaining term of the current license,provided that the most recent license renewal or original license purchase was made less than 30 days prior, any fees related to the period during which you will not have access to your ZC Products or Services. If ZC updates the ZC Products or Services without requiring an additional fee and you object to such change, your sole remedy shall be to terminate your use of the ZC Products and Services. These Terms and Conditions of Use (including any documents incorporated by reference) constitute the entirety of the agreement between us and you concerning the subject matters discussed herein. This Agreement supersedes any prior written or oral representations, understandings, or agreements, and may not be modified except by the posting of changes to www.zipcloud.com as provided in this Section 5. No written or oral statement, understanding, representation, or alleged agreement made outside the Terms and Conditions of Use posted to www.zipcloud.com may be used to modify, interpret, add to, supersede, or construe the terms of this Agreement, except by means of a written agreement signed by an officer of ZC.
6. ZC License to You; Renewals, Modifications, Limits(a) Scope of License.
ZC grants you a non-exclusive, non-transferable limited and revocable license to install the ZC Software only on the computer(s) for which you have paid the applicable fees and taxes and from which you are licensed to access the ZC Products or Services, and to Use the ZC Products or Services for the sole and exclusive purposes of connecting to and Using the ZC Products or Services for your personal or internal business purposes in accordance with these Terms and Conditions of Use. We reserve all other rights to the ZC Products or Services. You may Use a license for the ZC Products or Services with only one computer at a time unless the ZC Products or Services you Use are explicitly designed and marketed to operate on more than one computer at a time concurrently. The type of license you have (including such variables as whether the license permits use of ZC Products or Services on more than one computer, whether the licenses fees are based on the number of computers, volume of data, or both, and the length of the Subscription Periods, etc.) is set forth as part of the ZC Product or Service description available at www.zipcloud.com . Should your license for the ZC Product or Services you Use be designed for 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 ZC 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. You may not sub-license, or charge others to Use or access the ZC Products or Services and you may not redistribute the ZC Products or Services or provide others with access to or Use of them, unless you have entered into a separate Reseller Agreement or other agreement with ZC that expressly authorizes you to engage in this activity. Without limiting the forgoing, you will not permit others to Use the ZC Products or Services to access or decrypt data stored on servers provided by ZC or ZC Affiliates; you will not Use or permit others to Use the ZC Products or Services to decrypt data encrypted by others; and you will not Use or permit others to Use the ZC Products or Services to provide encryption or decryption services to others, whether or not such services are compensated.
(b) Trial Licenses.
You may have received as part of your ZC 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, ZC 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, ZC grants to you a non-exclusive, non-transferable limited license to Use the ZC Software during the trial or evaluation period in accordance with these Terms and Conditions of Use. If you wish to protect multiple computers with a free trial or evaluation license, you must obtain a separate 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. You may only install one free trial or evaluation license in each calendar year per computer.
You agree that ZC shall have the right to automatically and without notice renew your license to continue to Use the ZC Products or Services upon expiration of your then-current license, and that as part of such renewal ZC shall have the right to charge the applicable renewal fees and any applicable taxes, which may be different than those you paid when you initially purchased or last renewed your license for ZC Products or Services to any credit card you used to purchase your then-current license. You agree that if you elect to not permit ZC the right to automatically renew your license to Use ZC Products or Services or your credit card information on file with ZC does not permit automatic renewal, then ZC may terminate your license if you do not otherwise renew your license. If you received a discount in your initial sign up period this will be for the first term with ZC only. We will renew your account at the listed non discount price.
(d) Cancellation of Renewals.
You may cancel a renewal of a license only on the following terms: You may not Use ZC Products or Services for any unlawful purpose. If your most recent original or renewal license of ZC Products or Services was for a period of greater than thirty (30) days, you have thirty (30) days from the date that your license was last renewed to elect to discontinue your Use of ZC Products or Services. If you elect to discontinue your Use of ZC Products or Services within this period, you will be issued a full refund for the amount of your license renewal. If your most recent original or renewal license of ZC Products or Services was for a period of greater than 30 days, and you beyond your original or renewal 30 days of that period, you shall will not be entitled to a refund. In addition all sales are final and not subject to a refund for the following products multiple computer extra, priority support, additional support, increased bandwidth and other additional products that may be offered from time to time by ZC . That do not fall within the initial package purchased by you. All extras concerned are one time purchases for the period you selected and will not be eligible for a refund. in addition all sales are final and not subject to a refund for the following products: Should you fail to pay amounts invoiced and due within seven (7) days of being invoiced, or should your payment be otherwise rejected or denied, then ZC may at its sole discretion begin collection proceedings to recover any and all amounts due. Should ZC elect to refer your past due obligations for collection proceedings you will also become responsible for any costs associated with said collections and shall pay ZC the greater of the then permissible interest rate on the past due balance or 1.5% per month calculated and due on a monthly basis. You are responsible for ensuring that ZC has current and accurate records necessary, to renew your license, including without limitation, credit card data.
(e) Early Termination Fee
We will apply a termination charge if you stop your service when still within your contract term. When you sign up for a minimum term service, the costs of that service are spread across the term period, for example over 6 months, 1 or 2 years. Discounts and any fees are also included in the agreed service costs. Early Termination charges are applied to recover the costs of the service provided to you over the minimum contract period.
Our Prices: Your Early Termination Fee will be 14.95 for failure to complete your contract term.
Note: A Termination charge doesn't attract VAT.
What are Early Termination charges? Often, customers that order services from us agree to take those services for a minimum period (usually 6 /12/24 months). Sometimes customers will choose to give up a service within this minimum period. If they do, we will usually charge them for doing so.
Exemptions: The exceptions when we will not raise Early Termination charges are listed below:
All monthly plans are void of any terminations fees as their contracts are on month-month contracts.
Contract extension: a contract extension for the same product, for example 1 year extended to a 2 year contract.
Product migration: migration of an existing product or service up the value chain to a higher value product for the same or longer contract period.
Temporary service: termination of a pre-agreed temporary service.
Account’s where the termination is within (3) Three days from the date of order.
If the resulting refund is less than 14.95 the refund will not be issued but no further charges for the remaining will be charged.
Why wasn’t I told about the charge? When you ordered the product with us, the prices and terms and conditions of service would have been explained. Re-confirmation of length of contract, and our terms and conditions would have been shown as a confirmation box on the order form. We also highlight the length of term in all of our product descriptions.
ZC may in its sole discretion provide automatic updates to the ZC Products or Services. These updates may not be consistent across all platforms and computers; and the performance and features offered by ZC may vary depending on your computer and other equipment. You agree that we may automatically check your version of the ZC Software and automatically update the ZC Software on your computer. You agree to accept and to take no action to interfere with such automatic updates, scanning, and related activities and services. If you shut down your computer or the ZC Software during an automatic update or otherwise interfere with the installation of the update, the software may be damaged and/or cease to operate.
By purchasing a license, you acknowledge that you are aware of the opportunity to "try before you buy" by using a free or evaluation ZipCloud Product or Service. ZipCloud offers a pro-rated 30-day money back guarantee for ZipCloud Products or Services. By purchasing any service with a setup fee you acknowledge that the setup fee is non-refundable where 'setup fee' is indicated in the plan or plan name.
Please do not attempt a chargeback. We will make every effort to assist you, please contact support@zipcloud .com .
(i) Duration of Agreement.
You agree that you shall be bound by these Terms & Conditions of Use beginning on the earlier of when you first install ZC Products or Services or when you first agree to the ZC Terms and Conditions of Use until the later of the dates when (i) your license and any renewal thereof terminates, ii) your Backup Data is deleted, or iii) you have your last contact with ZC for customer support.
7. Assignment and Delegation by ZCZC may, in its sole discretion, transfer or assign all or any part of its rights in the ZC Software, the ZC 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 ZC Products or Services, licenses, or other contracts.
8. No Transfers or Modifications by YouYou may not sell, assign, grant a security interest in or otherwise transfer any right in the ZC Products or Services, nor incorporate them (or any portion of them) into another product or service. You may not copy the ZC 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 ZC Software or decrypt any files that are not associated with your computer. You may not modify the ZC 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 ZC Products. You may not authorize or assist any third party to do any of the foregoing.
9. Protection of FilesYou 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 ZC 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. Retention or Deletion of Backup Data and Personal InformationZC Software saves to a server operated by ZC or a ZC Affiliate an encrypted copy of each file you designate. The ZC Software scans for changes or additions to these files and then periodically creates an encrypted copy of a modified or newly designated file. You will not be able to restore files that ZC has not completed copying, files that have been changed but not yet been backed up, or files or folders or disc drives that are not eligible for back up. ZC does not maintain a secondary copy of your data that you have Backed Up to our servers. Should your data be lost by ZC we will undertake commercially reasonable efforts to create a replacement back-up from the files stored on your computer. If your license to Use ZC Products or Services expires, is terminated, is not renewed, or is otherwise discontinued for any reason, ZC and the ZC Affiliates may, without notice, delete or deny you access to any of your Backup Data that may remain in our possession or control. You agree that if i) you mark a file to no longer be backed-up, ii) you delete a file from your computer, iii) move a file to a location on your computer that is not marked for back-up, iv) you delete a computer from your ZC Products or Services account, v) your computer is unable to access ZC, or vi) you terminate or allow your trial or license to terminate, non-renew, or otherwise lapse for any reason, that the files you have marked, deleted, moved or stored on a deleted, inaccessible, or unlicensed computer may not be available to you should you wish to restore them. You agree that ZC and ZC 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 ZC's marketing to you of the opportunity to purchase, renew, or extend a license. You also agree that ZC may retain your Personal Information and related account information for a reasonable time after your license has been terminated.
11. Customer SupportZC may, in its sole discretion, provide customer support or service to you. This service may be available only on selected days and during a limited number of hours. Service may also only be made available through 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, ZC may employ a variety of tools to aid in the process of resolving your issues as a user. You grant ZC the right to use these tools and hold ZC harmless for the use of these tools as well as the guidance provided by its customer support staff who, you acknowledge, cannot be fully aware of all of the complexities associated with the ZC Products or Services, your computer, or all of the related or associated infrastructure that may affect the performance of your systems or the encryption and backup of your files. You agree and understand that certain programs, files, information or data you restore may require that you have access to or retain license keys that ZC may not have backed up and that you will retain any needed copies of such information. You agree and understand that certain programs, applications or utilities will require configuration in order to access data restored from your ZC Products or Services and that ZC has no obligation to assist, and may not be able to assist, you with such configurations.
12. Restrictions on Access to ZC Products or ServiceYou may access ZC Products or Services only through the interfaces and protocols provided or authorized by ZC. You agree that you will not access ZC Products through unauthorized means, such as unlicensed software clients. Certain ZC Products or Services 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. CommunicationsYou are responsible for obtaining and maintaining all of the hardware, software, and services that you may need to access and Use ZC 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 ZC Products or Services.
14. Termination and Fair Use PolicyZC SHALL HAVE THE ABSOLUTE AND UNILATERAL RIGHT IN ITS SOLE DISCRETION TO DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF ZC PRODUCTS OR SERVICES TO USERS WHO ARE DEEMED BY ZC TO BE USING THE ZC PRODUCTS OR SERVICES IN A MANNER NOT REASONABLY INTENDED BY ZC OR IN VIOLATION OF LAW, INCLUDING BUT NOT LIMITED TO SUSPENDING OR TERMINATING A USER'S ACCOUNT WITH ZC AND THE LICENSE TO USE THE ZC PRODUCTS OR SERVICES. ZC Products or Services are designed to serve the needs of particular types of users, such as individual consumers or small businesses. If you have purchased a ZC Product or Service that is inappropriate for your actual usage, ZC may require you to switch to an appropriate ZC Product or Service which may result in your having to pay ZC additional fees for use of the appropriate product or to terminate your purchased ZC Products or Services and refund, on a prorated basis, any fees paid you may have paid on the unused portion of your ZC subscription, provided that the most recent license renewal or original license purchase was made less than 30 days prior. For example: If ZC believes that you are using our service for business or commercial use, ZC has the sole discretion to amend your service to our Business and Enterprise service which may require you paying additional fees or termination of your account. ZC may, in our sole discretion and from time to time, establish or amend general operating practices to maximize the operation and availability of ZC 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 ZC Products or Services may be deemed excessive if, within any month, your usage greatly exceeds the average level of monthly usage of ZC's customers, generally. In the event you are deemed to have violated this policy, we reserve the right to offer an alternative pricing plan or ZC Product or Service that will permit you to continue to use ZC Products or Services. Although violations of this policy have been infrequent, we reserve the right to terminate or suspend your license to Use ZC Products or Services and any license to use the ZC Software, without prior notice in the event of a violation of this policy.
16. Warranties(a) WARRANTY. ZC warrants that the ZC Products or Services will perform substantially as specified in the applicable ZC documentation for a period of thirty (30) days from the date of registration or payment. If you satisfactorily demonstrate to ZC within such thirty (30) day period that a ZC Product or Service contains errors, then as ZC's sole and exclusive liability and as your sole and exclusive remedy, ZC shall at its sole option either use commercially reasonable efforts to correct the errors reported by you, replace the ZC Product or Services affected with a substantially conforming product or service, or refund the fee you paid for the ZC Product or Service and terminate your license under the Terms and Conditions of Use. ZC does not warrant the results of its correction or replacement ZC Products or Services. Correction or replacement under this Section 16 (Warranties), and the issuance of any corrections, patches, bug fixes, workarounds, extras, enhancements, or updates by ZC to you, shall not be deemed to begin a new, extended, or additional license, Subscription Period, or warranty period.
(b) 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. ZC and the ZC Affiliates do not warrant that the functions contained in the ZC Products or Services will meet your requirements, that the operation of the ZC Products or Services will be uninterrupted or error-free, or that defects in the ZC Products or Services will be corrected. ZC and ZC Affiliates do not warrant or make any representations regarding the use or the results of the use of the ZC Products or Services in terms of their correctness, accuracy, reliability or otherwise. ZC and ZC Affiliates do not represent or warrant that users will be able to access or use the ZC Products or Services at times or locations of their choosing, or that ZC and ZC Affiliates will have adequate capacity for any user's requirements. No oral or written statement, information or advice given by ZC, ZC 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.
18. IndemnificationYOU AGREE TO DEFEND, INDEMNIFY AND HOLD HARMLESS ZC , ZC AFFILIATES, AND THEIR RESPECTIVE DIRECTORS, OFFICERS, EMPLOYEES AND AGENTS FROM AND AGAINST ANY AND ALL CLAIMS, DAMAGES, LOSSES, LIABILITIES, AND EXPENSES, INCLUDING WITHOUT LIMITATION ATTORNEYS' FEES, ARISING OUT OF YOUR USE OF THE ZC PRODUCTS OR SERVICES AND/OR YOUR VIOLATION OF ANY TERM OF THESE TERMS AND CONDITIONS OF USE. Should you bear financial responsibility for payment to ZC for ZC Products or Services or have otherwise made payment for ZC Products or Services, you agree to indemnify any Users of ZC Products or Services that you have paid for with respect to any and all matters. If you are a beneficiary of another party having paid for said ZC Products or Services, whether or not the paying party(s) is a user of ZC Products and Services, your sole source of recourse, for any and all claims, is to the party that bears financial responsibility to ZC for ZC Products and Services. ZC 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, YOU SHALL HAVE NO FURTHER OBLIGATION TO PROVIDE A DEFENSE FOR ZC IN THAT MATTER. If ZC 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 ZC and ZC Affiliates, at your own expense, to the full extent requested by ZC.
19. Trademarks, Service Marks, and Other Intellectual PropertyAll trademarks, service marks or other similar items appearing on the ZC Products or Service are the property of their respective owners, including, without limitation, ZC, Inc. The ZC Products or Services are protected by copyright and other intellectual property laws, title, ownership rights, and intellectual property rights in the ZC Products or Services and shall remain with ZC and its licensors. You agree not to take any action to jeopardize, limit, or interfere in any manner with ZC's or its licensor's ownership of or rights with respect to the ZC Products or Services.
20. U.S. Government Restricted RightThe ZC 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 ZC Software with only those rights set forth therein.
21. High Risk ActivityYou acknowledge and agree that the ZC 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 ZC makes no warranty and shall have no liability arising from any Use of the ZC Products or Services in any high risk or strict liability activities.
22. Dispute Resolution, Arbitration, Governing Law, and Venue(a) Arbitration of Domestic (U.S.) 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 ZC Products or Services provided for by this Agreement primarily for non-commercial personal, family, or household purposes ("Consumer Licensees"), and in Akron, OH or such other place within the United States as the arbitrator may direct in the case of all other Licensees ("Commercial Licensees").
(b) 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 ZC and a person who is neither a citizen nor a resident of 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.
(c) 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 ZC 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.
(d) 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 ZC 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).
(e) Discovery Procedures in Arbitration.
The parties shall be entitled to such discovery as is appropriate in the judgment of the arbitrator, in light of the nature and objectives of arbitration and to ensure that each party has an adequate opportunity to determine the factual bases for its claims and defenses.
(f) 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.
(g) 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 judgments have res judicata (claim preclusion) or collateral estoppel (issue preclusion) effects except as between the parties themselves. All other provisions of this Agreement shall be governed by and construed and interpreted in accordance with the internal laws of the Commonwealth of Ohio, USA, without regard to conflict of laws provisions. 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(a) Trial and Evaluation Licenses. If this Agreement pertains to a trial, beta, or evaluation license (such as a license that provides a limited amount or an unlimited 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 trial or evaluation period, when the ZC Product or Service you are using is no longer made available, six (6) months from the date you first installed the ZC Product and Service, or when ZC cancels or terminates the license, whichever is shorter. You agree to Use the ZC 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 ZC allows your license to roll over for another six (6) month period which ZC may elect to do at its sole discretion and without notice to you.
(b) All Other Licenses; Limited Term. Your license will end upon the sooner to occur of (i) expiration of your Subscription Period, (ii) upon your non-renewal of the license, (iii) upon your cancellation of the license, (iv) when ZC elects to discontinue the product, (v) 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 (vi) when ZC cancels or terminates your license, (any such expiration, cancellation, discontinuation, or termination are referred to hereafter as "termination").
(c) Termination for Unlawful or Abusive Use, Other Breach. ZC may block your access to your Backup Data and/or terminate your Use of the ZC Products or Services if ZC reasonably believes that the Backup Data may contain child pornography or is being used to support other types of illegal activities, if providing ZC 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 ZC 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 ZC Products or Services shall automatically terminate if you fail to cure the breach within seven (7) days after notice from ZC or any of the ZC 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 ZC Products or Services and delete all copies of them; ii) the ZC Software may be disabled by ZC without notice to you; and iii) you will no longer have the right to access or retrieve your Backup Data; you hereby grant ZC at its sole discretion the unrestricted right to delete or retain all such Personal Information and Backup Data at any time after termination, without notice.
24. SurvivalIn 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 (ZC 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), Section 30 (Miscellaneous) and Section 31 (Severability) shall survive such termination, expiration, or cancellation, and you agree to remain bound by those terms.
25. NoticeAny notice that may or must be given by ZC in connection with this Agreement or in connection with the Use of the ZC Products or Services, may be given by sending it to the email address provided by you upon registering for the ZC Products or Services or as you may provide from time to time thereafter by modifying your user profile at www.zipcloud.com. You are responsible for ensuring that your accurate email address is available to ZC and provide any needed updates. ZC 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, ZC has no obligation to provide notice or attempt to locate a customer other than through the email address provided.
26. English LanguageThese 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. Les parties ont convenu de rediger cette entente en anglais.
27. Entire Agreement; Applicability of Terms; Construction; Limit to Modifications; Conflicts in TermsThese 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 ZC and you regarding ZC Products or Services, and supersedes all prior agreements between you and ZC regarding the subject matters hereof. Any item or service furnished by ZC 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. 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 and signed by an authorized officer of ZC . 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 ActionsUnless 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 NotificationAs 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 ZC: firstname.lastname@example.org. If you believe content hosted by ZC 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. MiscellaneousYou agree to reimburse ZC 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 ZC. ZC 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 ZC, by granting such person access to your username and password or by having your computer registered for ZC Products or Services where another party is paying for the backup of your files) to have access to your Backup Data, you hereby authorize ZC to give such designated person access to your Backup Data, including without limitation in the event of your death or incapacity.
31. SeverabilityThis 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. No WaiverThe Company reserves its right to take all legal steps available to enforce these Terms and Conditions of Use. The Company's failure to enforce these Terms and Conditions of Use in every instance in which they might apply, or the failure to require at any time performance of any provisions of this Agreement, will in no way be construed to be a present or future waiver of such provisions or of the Company's rights to enforce such provisions. No waiver of any provisions of this or any other Agreement with the Company shall be effective unless expressly stated to be such in writing and signed by both parties.
33. Billing ProcessSome licenses for ZC Products or Services are based on the number of computers registered, the volume of storage used, or both, as well as for ancillary or related services. Where your license fees are based in full or in part upon the amount of storage you use, your bill for ZC Products or Services will be based upon the greater of the storage amount shown on your computer or the storage amount maintained by ZC, excluding the benefits of any data compression, file duplication or similar techniques performed by ZC. The calculation of a storage bill will be based upon the price(s) for the ZC Products or Service licensed and may be based upon the average storage used during the Subscription Period, the storage as of the end of the Subscription Period, or another storage measure taken during the Subscription Period, depending on which services you have selected at the time of registration or renewal. Should ZC bill you for your ZC Product or Service on a monthly or periodic basis you agree that ZC will bill you exclusively in full month or periodic increments and that there will be no billing for partial months or periods for any reason. Any amounts billed are fully due and payable at the time the bill is rendered to you.
34. Billing IssuesYou 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 ZC Contact Information indicated in Section 35 (ZC 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.
35. Managing Your ZC Product or ServiceYou acknowledge and agree that where ZC licenses ZC Products or Services to an entity or organization, or where an entity or organization makes the ZC Products or Services available to you, the entity or organization so licensed or giving you access may grant multiple individuals rights related to the management and Use of the ZC Products or Services and the Backup Data, without any notice to you. These rights may enable one or more persons to: view, access or change Backup Data or Personal Information; determine who can access the account, Backup Data, and Personal Information; determine who is responsible financially for the account; and other similar actions.
36. ZC Contact informationIf you have any questions or comments, please contact us at email@example.com. Although we strongly prefer email communication, you may also send regular postal mail to:
Unit 6, Fulcrum 2
Solent Way, Whiteley
JDI Backup Limited. Company Number 7488961