Terms and conditions for backup and mail archiving.
BORCHART CONSULTING, LLC TERMS OF SERVICE
These terms of service cover all services installed and maintained by Borchart Consulting, LLC that automatically, using a schedule, transmit (aka “back up”) your data, files, databases and other electronic property from your site to servers owned, contracted, or managed by Borchart Consulting, LLC, where the invoice originates from Borchart Consulting, LLC.
2. ACCOUNTS & FEES
You must contract with Borchart Consulting, LLC to use the Services. You agree to pay the fixed subscription and variable usage-based fees, as part of the regular monthly invoice you receive from Borchart Consulting, LLC.
3. PASSWORDS & SECURITY
Borchart Consulting, LLC will assign you an username and provide you with a password. You are responsible for keeping your passwords secure, and you agree not to disclose your passwords to any third party. The Borchart Consulting, LLC technician assigned to your account and you are responsible for any activity that occurs under your user names and accounts. You must notify Borchart Consulting, LLC immediately of any unauthorized use of your account or any other security breach related to the Service. If Borchart Consulting, LLC determines that a security breach has occurred or is likely to occur, Borchart Consulting, LLC may suspend your account.
5. USE OF SERVICES & SOFTWARE
Subject to these Terms, Borchart Consulting, LLC grants you a limited, non-exclusive, non-transferable and revocable license to access the Site and use the Services and Software. Borchart Consulting, LLC will install the Software on the devices specified as part of the initial backup design. You acknowledge that certain third party code may be provided with the Software and that the license terms accompanying that code will govern its use.
You acknowledge that Borchart Consulting, LLC or third parties own all right, title and interest in and to the Products, including all intellectual property rights. Except for the license granted in these Terms, Borchart Consulting, LLC and its licensors retain all rights in the Products, and no implied licenses are granted to you.
You specifically agree that you will not, nor will you permit another person to:
sublicense, lease, rent, loan, transfer or distribute any portion of the Products;
modify, adapt, translate or create derivative works from the Products;
decompile, reverse engineer, disassemble or otherwise attempt to derive source code from the Products; or
remove, obscure, or alter any trademark, copyright or other proprietary rights notices displayed in the Software or on the Site.
6. SHARED CONTENT
The Products may enable you to share or synchronize your files between your own devices or with devices owned or controlled by third parties. If you choose to use any such features, you agree that your use of these features, including any content submitted by you, shall be at your sole risk and responsibility. You also agree that you have obtained all necessary rights and licensees to any such content. You hereby grant Borchart Consulting, LLC a worldwide, royalty-free, nonexclusive license to use any such content as part of the Services, and in relation to the Products, without any compensation to you or others. Borchart Consulting, LLC reserves the right to refuse to post or remove any such content at any time in its sole discretion without notice or liability.
7. COMPLIANCE WITH LAWS & ACCEPTABLE USE
You are solely responsible for your conduct related to the Service and any data you store or share on the Service. You specifically agree that you will not use the Products to:
violate any laws or regulations;
infringe the intellectual property or other rights of third parties;
transmit any material that is obscene or objectionable or that contains viruses or other harmful computer code or files such as Trojan horses, worms or time bombs.
8. INTELLECTUAL PROPERTY PROTECTION
Borchart Consulting, LLC respects the intellectual property of others and requires that users of the Service do the same. When you use the Products, you may not upload, store, share, display, post, e-mail, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. If you commit repeated violations, Borchart Consulting, LLC may terminate your account.
9. USER INDEMNITY
You agree to defend, indemnify, and hold Borchart Consulting, LLC, its suppliers, resellers, partners and their respective affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable attorney fees and costs, in connection with:
your use of the Products;
your violation of these Terms;
your violation of any third party right, including any intellectual property right; or
any claim that use of your data caused damage to a third party.
This indemnity obligation will survive the termination or expiration of your account and these Terms.
10. CHANGES TO THE SERVICE & TERMS
Borchart Consulting, LLC reserves the right at any time to modify, suspend, or discontinue providing the Service, in whole or in part, without notice. While not obligated to do so, Borchart Consulting, LLC will use commercially reasonable efforts to notify you of any such action by sending you an e-mail, an in-client message or by posting relevant information on the Site.
Borchart Consulting, LLC reserves the right to modify these Terms at any time, and each such modification will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Products immediately.
11. TERM & TERMINATION
These Terms, and any posted revisions, remain in effect as long as you continue to maintain a current account or use the Services. You may terminate your account for any reason, by notifying Borchart Consulting, LLC at least two billing cycles prior to termination.
Borchart Consulting, LLC may terminate your account and these Terms immediately and without notice if you fail to pay any fees or invoices when due or otherwise fail to comply with these Terms.
On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Software and the Services, and you will no longer be able to access and restore your backup data. Also, you specifically agree that Borchart Consulting, LLC has no obligation to provide you or anyone else with a copy of your backup data and may automatically purge your backup data from Borchart Consulting, LLC systems.
DISCLAIMER OF WARRANTIES
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES, SOME OF THE STATEMENTS BELOW MAY NOT APPLY TO YOU.
YOU AGREE THAT YOUR USE OF THE PRODUCTS IS AT YOUR SOLE RISK, AND THE PRODUCTS ARE PROVIDED ON AN “AS IS” AND “AS AVAILABLE” BASIS. BORCHART CONSULTING, LLC, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES EXPRESSLY DISCLAIM ALL WARRANTIES OF ANY KIND, WHETHER EXPRESS OR IMPLIED, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. IN PARTICULAR, BORCHART CONSULTING, LLC, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES MAKE NO WARRANTY THAT (A) THE PRODUCTS WILL MEET YOUR REQUIREMENTS; (B) YOUR USE OF THE PRODUCTS WILL BE TIMELY, UNINTERRUPTED, SECURE OR ERROR-FREE; (C) ANY INFORMATION OBTAINED BY YOU AS A RESULT OF THE PRODUCTS WILL BE ACCURATE OR RELIABLE; AND (D) ANY DEFECTS OR ERRORS IN THE PRODUCTS WILL BE CORRECTED.
ANY MATERIAL DOWNLOADED OR OTHERWISE OBTAINED THROUGH THE USE OF THE PRODUCTS IS ACCESSED AT YOUR OWN DISCRETION AND RISK, AND YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR LOSS OF DATA THAT RESULTS FROM THE DOWNLOAD OF ANY SUCH MATERIAL. YOU FURTHER ACKNOWLEDGE THAT THE PRODUCTS ARE NOT INTENDED OR SUITABLE FOR USE IN APPLICATIONS THAT COULD LEAD TO DEATH, PERSONAL INJURY, OR SEVERE PHYSICAL OR ENVIRONMENTAL DAMAGE.
B. LIMITATION OF LIABILITY
BECAUSE SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OR LIMITATION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE STATEMENTS BELOW MAY NOT APPLY TO YOU.
YOU AGREE THAT BORCHART CONSULTING, LLC, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES WILL NOT BE LIABLE TO YOU FOR ANY INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES , INCLUDING DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA, COST OF PROCUREMENT OF SUBSTITUTE GOODS OR SERVICES, OR OTHER INTANGIBLE LOSSES (EVEN IF THE PARTY YOU ARE SEEKING DAMAGES AGAINST HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES), RESULTING FROM THE USE OR INABILITY TO USE THE PRODUCTS OR IN ANY WAY RELATING TO THE PRODUCTS.
YOU AGREE THAT THE AGGREGATE LIABILITY OF BORCHART CONSULTING, LLC, ITS SUPPLIERS, RESELLERS, PARTNERS AND THEIR RESPECTIVE AFFILIATES FOR ANY AND ALL CLAIMS IN CONNECTION WITH THE PRODUCTS IS LIMITED TO THE AMOUNT PAID FOR THAT ACCOUNT DURING THE TWO (2) YEAR PERIOD BEFORE THE RELEVANT CLAIM OR TWO-HUNDRED US DOLLARS ($200), WHICHEVER IS LOWER.
These Terms and the relationship between you and Borchart Consulting, LLC will be governed by the laws of the State of Minnesota. You agree to submit to the personal and exclusive jurisdiction of the courts located in Minneapolis, Minnesota to resolve any dispute or claim arising from these Terms. As to intellectual property rights, you specifically agree that Borchart Consulting, LLC may file an action in any jurisdiction to protect or enforce its rights. You may not assign or transfer any of your rights or obligations under these Terms to a third party without the prior written consent of Borchart Consulting, LLC. Borchart Consulting, LLC may freely assign this Agreement.