Terms and Conditions



SDS Online Backup Service Terms Of Use

This SDS Online Backup website (and any and all sub-domains) located at http://remote-online-backup.com and any and all services and software provided through or by such websites or otherwise in connection with the SDS Online Backup (collectively, including such websites and all such services, the “Site”) is owned and operated by Subterranean Data Services, Inc. (“SDS”). For the purposes hereof, the users of the Site are referred to as “you”, “your” or “User” and SDS is referred to as the “Company”, “we”, “us” or “our”.
The following is a legally binding agreement (the “Agreement”) between you and the Company with respect to your access and use of the Site and any services provided through or in connection with the Site. For good and valuable consideration (the adequacy and sufficiency of which is acknowledged by each of the parties) of the mutual promises of the parties contained herein, the parties hereby agree as set forth below. All Users will be subject to and bound by this Agreement.
 

Acceptance of Terms

BY ACCESSING, BROWSING AND/OR USING THE SITE AND ANY SOFTWARE, SERVICE INFORMATION OR MATERIALS OFFERED ON OR VIA THE SITE, YOU BECOME A USER OF THE SITE AND EXPRESSLY ACKNOWLEDGE THAT YOU HAVE READ, UNDERSTOOD, ACCEPT AND AGREE TO EACH OF THE TERMS AND CONDITIONS SET FORTH BELOW. IF YOU DO NOT AGREE TO ACCEPT EACH AND ALL OF THE FOLLOWING TERMS AND CONDITIONS AS SET FORTH BELOW, PLEASE DO NOT ACCESS, BROWSE OR USE THE SITE OR ANY OF ITS SOFTWARE, SERVICES, INFORMATION, MATERIALS OR OTHERWISE.
 

Eligibility

You must be at least 18 years old to use the Site. By using the Site, you represent and warrant that you are at least 18 years of age. If you are not 18 years of age or older, please do not access, use or browse the Site.
 

Privacy

Prior to providing any personal information to us about you on the Site, please review our Privacy Policy (as amended and supplemented from time to time), including, but not limited to, the policy located at http://www.remote-online-backup.com/privacy.htm You agree and warrant that any and all of your personal information provided to us is true and correct, including, but not limited to, your name, physical or electronic mailing address, phone number, fax number and other information requested (and you agree to update the same for the duration of this Agreement). You understand that all personal information provided by you to us will be subject to the terms and conditions of our Privacy Policy. You acknowledge and agree that we may disclose
Links to Us
Unless another party has entered into a written agreement with the Company, a party may only provide a hypertext link to the Site on another web site, if such hyperlink complies with ALL of the following conditions: 1) the link must be a text-only link clearly marked as www.remote-online-backup.com ; 2) the link must "point" to the URL "http://www.remote-online-backup.com" and not to any other pages within the site; 3) the link, when activated by a user of the Site, must display the Site full-screen and not with a "frame" on the linking web site; and 4) the appearance, position and other aspects of the link must not be such as to directly or indirectly damage or dilute the goodwill associated with the name and trademarks of the Company and the Site, and must not create the false or misleading appearance that the Company or the Site is associated with, or endorses or sponsors, the linking web site. The Company may selectively revoke its consent to any link at any time (for any reason or no reason) in the Company's sole and absolute discretion.

Disclaimer of Warranties

THE SITE AND ALL INFORMATION, SERVICES, CONTENT AND MATERIALS THEREON AND THEREWITH AREPROVIDED AND DISTRIBUTED ON AN “AS-IS” AND “AS-AVAILABLE” BASIS WITHOUT WARRANTIES OF ANY KIND WHATSOEVER. TO THE FULLEST AND MAXIMUM EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, THE COMPANY DISCLAIMS ANY AND ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE AND NON-INFRINGEMENT. SPECIFICALLY, BUT WITHOUT LIMITATION, THE COMPANY DOES NOT WARRANT THAT: (1) THE INFORMATION, SERVICES, MATERIALS OR CONTENT ON THE SITE IS CORRECT, ACCURATE OR RELIABLE; (2) THE FUNCTIONS CONTAINED ON THE SITE OR THROUGH THE SERVICES WILL BE UNINTERRUPTED, SECURE OR ERROR-FREE; OR (3) ANY DEFECTS WILL BE CORRECTED, OR THAT THE SITE, SERVICES OR THE SERVER THAT MAKES THEM AVAILABLE ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU HEREBY ACKNOWLEDGE THAT USE OF THE SITE IS AT YOUR SOLE AND ABSOLUTE RISK IN YOUR OWN DISCRETION.

Limitation of Liability

NOTIWITHSTANDING ANYTHING TO THE CONTRARY IN THIS AGREEMENT, IN NO EVENT, AND UNDER NO CIRCUMSTANCES, WHATSOEVER (AND REGARDLESS OF THE PURPORTED THEORY OF LIABILITY, WHETHER IN CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE) WILL SDS BE LIABLE (EVEN IF SDS KNOWS OR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) FOR: (1) ANY INCIDENTAL, SPECIAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR INDIRECT DAMAGES ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SITE, ANY SDS SERVICES OR THE RELATIONSHIP BETWEEN YOU AND SDS; OR (2) AGGREGATE, CUMULATIVE LIABILITY ARISING OUT OF, RELATING TO, OR IN CONNECTION WITH, THIS AGREEMENT, THE SITE, ANY SDS SERVICES OR THE RELATIONSHIP BETWEEN YOU AND SDS, WHICH EXCEEDS THE AMOUNT ACTUALLY PAID BY YOU TO SDS TO ACCESS AND USE THE SITE (IF YOU ARE A USER), OR, IF YOU HAVE NOT PAID TO USE THE SITE, THE TOTAL AMOUNT OF $25.00 (TWENTY-FIVE UNITED STATES DOLLARS). Each of you and us expressly acknowledge and agree that the limitations of liability set forth in this paragraph are an essential element of this Agreement, and in the absence of such limitations, the economic terms of this Agreement would have been substantially different than provided herein and/or the parties would not have entered into this Agreement.

Indemnification

You will, at your own expense, defend, indemnify and hold harmless the Company, its parents, subsidiaries, affiliates and agents, and their respective officers, directors, shareholders, agents, representatives, contractors, employees and customers (each, an “Indemnities”, and collectively, “Indemnities”) from and against any and all loss, cost, expense, damage, claim, demand, or liability, including (without limitation) reasonable attorney and professional fees and costs, and the cost of settlement, compromise, judgment, or verdict incurred by, or demanded of, an Indemnities, that, directly or indirectly, arises out of, results from or occurs in connection with: (a) your negligence, bad faith or willful misconduct; (b) your breach of any of the provisions of this Agreement; (c) your violation of any applicable law, rule or regulation; (d) (i) infringement by you of any intellectual property, proprietary or other rights of any third party, including (without limitation) any patent, copyright or trademark, (ii) unlawful disclosure, use, or misappropriation of a trade secret by you, or (iii) violation of any other third-party intellectual property right, or other property or personal right of any person or entity; or (iv) your use of the Site or any SDS service, software or website, in any manner whatsoever. We reserve the right, at our own cost and in our sole and absolute discretion, to assume the exclusive defense and control of any matter otherwise subject to indemnification by you, in which event you will fully cooperate with us in asserting any available defenses, and reimburse our reasonable costs and expenses (including, without limitation, reasonable attorney and professional fees) in connection with, relating to or arising from our defense in such matter.

Changes or Specialized Modifications

The Company may, in its sole and absolute discretion, modify or change any or every aspect of the Agreement at any time (for any reason or no reason), effective immediately upon posting such modifications or changes (or a revised version of this Agreement incorporating such modifications or changes therein) on or through the Site. Please periodically consult the end of this Agreement to determine when the Agreement was last revised. You agree to periodically review this Agreement to ensure that you are in compliance with any ongoing changes or modifications that are made to the Agreement. Your continued use of the Site after any such modifications or changes are posted will constitute your complete and unequivocal acceptance of such any modifications or changes to the Agreement. The Company reserves the right, but has no obligation whatsoever, to modify or change the Agreement as it applies to any specific User, provided that any and all such special modifications must be in writing and signed by and between the Company and the applicable User. Any specialized modifications so made shall apply exclusively and only to the User that is a party to such written agreement.

Termination

This Agreement shall remain effective until terminated (i) by us at any time upon notice thereof to you, or (ii) by you upon ten (10) business days’ prior written notice to us. Termination of this Agreement for Users shall be governed by the provisions set forth above regarding the User Term.
Upon any termination or expiration of this Agreement, any and all provisions and obligations, which are of a continuing nature, shall survive, including (without limitation) the sections titled Proprietary Information, Indemnification and Limitation of Liability.

General

If any provision of this Agreement is declared by a court of competent jurisdiction to be illegal, invalid or unenforceable for any reason, then: (i) such provision will be enforced to the maximum extent permissible under the circumstances so as to effectuate the original intent of the parties with respect to such provisions; and (ii) the remaining provisions of this Agreement will be unaffected thereby and will continue to remain in full force and effect at all times.
This Agreement shall be governed by and construed in accordance with the laws of the State of Washington without regard to the conflicts of law provisions thereof. You expressly agree that any controversy, dispute or claim(“Litigation”) arising out of, relating to, or in connection with, this Agreement or the Site, or the alleged breach thereof, or relating to our activities or services or to us otherwise under this Agreement, shall be settled by confidential binding arbitration in Asotin County, Washington, in accordance with the applicable rules of the American Arbitration Association, and judgment on the award rendered by the arbitrator(s) shall be binding on the parties and may be entered in any court having jurisdiction. Regardless of any statute or law to the contrary, any claim or cause of action arising out of or related to your use of the Site or this Agreement must be filed within one (1) year after such claim or cause of action arose or was reasonable discovered, whichever is later, or be forever barred. In the event of any Litigation, both parties expressly and irremovably consent to the exclusive venue and personal jurisdiction in Asotin County, Washington. In the event of any Litigation arising from, related to or in connection with this Agreement or the Site, the prevailing party thereof shall be entitled to recover its reasonable expenses, including (without limitation) attorneys’ fees and the costs of litigation and arbitration. The agreement to arbitrate in this paragraph shall not prevent Company from seeking redress in any court of competent jurisdiction to protect its Proprietary Information or intellectual property, nor shall it prevent either party from enforcing this agreement to arbitrate or enforcing any judgment in any court of competent jurisdiction.
Unless otherwise stated herein, any notices hereunder shall be in writing and be delivered by hand, mail (as specified below), or email to the persons and at the addresses as set forth herein (for Company, as provided in this paragraph, and for you, as provided in your account details, as provided by you to us) and shall be deemed given upon (i) delivery if by hand, (ii) three (3) business days after mailing if by certified mail, return receipt requested, or (iii) confirmation of transmission in the case of email. Either party may change its address for receipt of notice to the other party by delivering notice of such change pursuant to this paragraph.
Subterranean Data Services, Inc.
1456 Hillcrest Way
Clarkston, WA 99403
United States of America
 
Attn: Legal Notices
Email: info@remote-online-backup.com
Company will not be liable for any failure to perform acts due to causes beyond its control (including, without limitation, electrical outage, Internet Service Provider downtime, power failure, fire, flood, strike, civil disturbance, terrorism, war, or Acts of God). If any such circumstances occur, Company shall provide reasonable notice to you of the same and the time for Company to perform hereunder will be extended for a period of time equal to the duration of the delay or default caused thereby.
Neither this Agreement, nor any rights or obligations hereunder, may be assigned or otherwise transferred (in whole or in part) by you without the prior express written consent of Company. Any attempted assignment by you in violation of this paragraph shall be null and void. This Agreement will be binding upon and inure to the benefit of the parties hereto and their respective successors, heirs, executors and permitted assigns. Company may freely assign or transfer (in whole or in part) this Agreement with or without notice thereof to you.
This Agreement may be executed in any number of counterparts, each of which will be deemed to be an original and all of which will be deemed a single agreement; provided, that your written or electronic signature is not necessary to manifest your assent or acceptance of this Agreement, and your use of the Site as discussed herein shall in and of itself constitute such assent and acceptance. This Agreement may be accepted and executed in the manner provided herein and such acceptance as provided herein shall constitute a valid and legally binding agreement.
The article, section and paragraph headings used in this Agreement are for convenience only and shall not be used in interpreting or construing this Agreement. This Agreement shall be interpreted as having been drafted together by each of the parties and duly reviewed by each party with the assistance of its respective legal counsel.
Nothing in this Agreement will be construed to constitute an agency, partnership, joint venture or employer-employee relationship between the parties. Neither party has the power, and will not hold itself out as having the power, to act for or in the name of, or to bind, the other party. Nothing contained in this Agreement should be construed to give either party the power to direct or control the day-to-day activities of the other party.
The provisions of this Agreement are intended solely for the benefit of Company and you, and shall create no rights or obligations enforceable by any other party.
The rights and remedies of Company under this Agreement are cumulative and may be exercised singularly or concurrently in each and every instance. You acknowledge and agree that any actual or threatened breach of any of the provisions contained in the paragraphs titled Intellectual Property and/or Proprietary Information herein may result in immediate, irreparable and continuing damage to Company for which there is no adequate remedy at law, and Company may apply to any court of competent jurisdiction for immediate equitable relief (including, without limitation, specific performance or injunctive relief) without the need for posting of any bond.
Failure by Company to enforce any right, remedy or provision hereof will not be deemed a waiver of the same or any future enforcement of that or any other right, remedy or provision, unless (and only to the extent) that such waiver is in writing and signed by a duly authorized representative of Company.
This Agreement contains the entire understanding between Company and you with respect to the subject matter hereof and supersedes any and all prior and contemporaneous agreements or understandings (whether oral, written, implied or otherwise) between the parties with respect to the subject matter hereof. Except as provided in the paragraph titled “Changes or Specialized Modifications”, any modification, addendum, or amendment to this Agreement will not be effective unless the same is in writing and signed by duly authorized representatives of both parties hereof.




Revision Date
This Agreement was last revised on May 1, 2012.
Copyright © 2012 Subterranean Data Services, Inc. All Rights Reserved

© Copyright 2012 Subterranean Data Services, Inc

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