Contents:

  1. Introduction
  2. Service
  3. Emergency Services
  4. Length Of Service
  5. Payment Processing
  6. RIGHT TO TERMINATE OR MODIFY SERVICES
  7. CUSTOMER SERVICE
  8. CANCELLATION OF SERVICES
  9. Prohibited Uses
  10. Export Control
  11. Confidentiality and Security
  12. Indemnification and Liability
  13. Copyright and Intellectual Property
  14. Dispute Resolution
  15. No Assignment
  16. Enforceability

Introduction

  1. These Terms and Conditions of Service (“Terms of Service”) constitute the agreement between Oldham Technology, Inc., a Utah company (“Provider”, “we”, “us”, “our”) and the user of Oldham Technology’s services and any related products or services (“User”, “you”, “your”), and includes these Terms of Service, all attachments, and all documents incorporated by reference.
  2. Your use of any of our products, services, devices, software, or functionality (“Services”) constitutes your agreement to the terms of this Agreement and you acknowledge that we would not agree to provide the Services without that assent. We may change the terms of this Agreement or the Services, including but not limited to the price, content or nature of the Services, at our sole discretion. By continuing to use any of our Services after said changes are effective, you accept the terms of those changes.
  3. You agree to communication in electronic form of agreements, notices, and other information. Revisions to these Terms of Service and related policies may occur from time to time and will be posted to our website or sent to you by email, according to our preference. You agree to visit our website from time to time and to check your email to review any such revisions. You also agree to notify us immediately of any change to your email address or contact phone number.

Service

  1. The Services we offer include (i) remote secure storage of closed electronic files, block level hard drive data, and certain supported open, electronic database files, (ii) means for determining which hard drive blocks and files have changed since the last transfer to remote secure storage, (iii) means for scheduling the transfer of changed data to the remote secure storage, (iv) means for securely transferring data to remote secure storage over your internet connection, and (v) access to the remote secured data for monitoring and recovery. Computer systems for which Services will be provided require a remotely accessible internet connection, and must run specific software we provide as means for the Services. Your data is and remains your property while it resides on our secure remote storage. Remote secure storage devices are our sole property. Your devices are your property and sole responsibility, including but not limited to, operation, installation, and maintenance. If such devices impair our Services, you will promptly cure such impairments upon notice from us, or one of our vendors or agents.
  2. We require you to run software programs on all devices which receive our Services. The software programs include their own terms and conditions required for use, that you will receive upon installation of the programs on your devices.
  3. Usage of our Services will incur usage of your internet services to communicate with our remote secure storage and management systems. We do not provide you with internet service. All such internet usage and all related charges or fees are your sole responsibility. Additionally, the quality of our Services is highly dependent on a reliable, high quality, broadband internet connection, which you are responsible to maintain. We have the option, but no obligation or responsibility, to assist you in resolving issues arising from poor or underperforming internet connections; or to assist you with problems resulting from hardware damage, misconfiguration, or failure of hardware. Additional charges may apply. Such issues are not considered to be faults or failures with our Services.
  4. Our Services may include software or hardware, which remain our property, and may or may not be installed or located on your premises. If we determine supplied assets are damaged beyond normal wear and tear, fees will be assessed to repair or replace such assets. You also agree to provide us with prompt access to any and all assets we own during and after the course of this agreement. Failure to provide prompt access may impair Services, and any resulting issues are not considered to be a fault or failure with our Services, and may incur additional fees.

Length Of Service

  1. The Services are provided on an annual basis, with an automatic annual renewal unless you provide us seventy-two (72) hours’ notice of cancellation prior to an automatic annual renewal date. Either party for any reason may cancel services as described in this Terms of Service. Due to the nature of our Services, no pro-rating of charges due to cancellation is available. All account balances, including future payments due throughout the remaining term of the contract, are immediately due on termination of Services.
  2. Plan terms, including pricing and features, may be changed by us at renewal of the Agreement. Only pricing changes, and not the adding or removing of features, require notice and will be provided 15 days or more before renewal. In the event we give notice, we may do so in an invoice, via electronic means, newsletter, phone call, or other communication means, at our sole discretion.
  3. Some plans may have a length of service other than annual. Such plans require a separate length of service agreement. This Terms of Service requires acceptance of the corresponding length of service agreement for said plans.

Payment Processing

  1. You agree to provide us with a valid email address and a valid payment method. You must advise us immediately if your email address changes and/or payment method changes or expires. Failure to comply may result in the immediate termination of Services. You authorize us to automatically bill the payment method you provided, until you cancel the Services in accordance with the requirements of these Terms of Service. You agree that we may receive updated information about your account from the financial institution issuing your account or credit card. Under certain circumstances you may make payments by check.
  2. All fees are due in advance on the first day of each billing period. Any  non-recurring charges are due and payable in arrears on the first day of each billing period following the month they were incurred. You agree to pay for all equipment and setup fees at the time you request the Services. You agree to pay for the first month of Services upon your request for such Services. All payments, including payments paid in advance, are completely nonrefundable. Failure to pay in full may result in immediate account suspension at our sole discretion and we shall have no liability for such suspension under any circumstances. Accounts will be reactivated, at our sole discretion, only when the account balance is paid in full and a $25 reconnect fee is paid. We will assess an additional 1.5% (or the highest amount allowed by law, whichever is higher) per month late charge if your payment is more than 30 days past due. We may modify fees at any time. Should you elect to make a payment to us by wire transfer, an additional charge of $10 shall apply. In the event that you present a check to us for payment that is returned by your bank for non-sufficient funds, you shall pay us a processing fee of $25, in addition to any fees or charges assessed by the transacting financial institutions. You are responsible and liable for any fees, including attorney and collection fees, that we may incur in our efforts to collect any remaining balances from you. You also agree that you will be billed for and will pay any outstanding balances if you cancel the Services.
  3. While we make diligent effort to make high quality Services available, there is no agreement as to minimum levels of service or quality, nor is there issuance of full or partial reimbursement or credit for a billing cycle once the billing cycle has begun. If you are dissatisfied with Services provided, you may provide notice of cancellation subject to the Terms of Service.
  4. In the event we collect taxes or fees, they will be noted on the invoice. Our collection of taxes, fees, and levies is a convenience only; You are responsible for all taxes, fees, and levies by country, state, county, city or equivalents. We are not aware of and cannot provide legal guidance on your specific fiduciary tax duties regardless of your location. You agree to indemnify and hold us harmless for issues related to or arising from your government taxes or fees so long as any taxes or fees collected and itemized on an invoice are promptly handled as stated.

RIGHT TO TERMINATE OR MODIFY SERVICES

  1. This Agreement will automatically terminate if you fail to comply with any term. No refund will be provided in the event that you have violated any term of this Agreement. No notice shall be required from us to effect such termination. Upon any termination of this Agreement (whether by you or us), you shall immediately discontinue use of the Services. Your obligation to pay accrued charges and fees shall survive any termination of this Agreement. In the event that we terminate this Agreement, the Services, all of your data may be deleted on the date that we cancel such services, without further notice to you.

CUSTOMER SERVICE

  1. We offer varying types and levels of customer service depending on a number of factors, including the service you are using and the problems you are experiencing. For current information on our customer service, please review our website or speak with your account representative. We assume no obligation to provide support services for any third party products or services, or for problems with our service caused by third party products or services.
  2. We may extend either a one-off or a contractual premium service option for support beyond what is normally provided for Services. Upon approval by both parties and depending on the specific issue, rates for one-off premium support start at $98 per hour and go up according to complexity.

CANCELLATION OF SERVICES

  1. You may cancel the Services at any time by providing us with a notice of your intent to cancel at least 72 hours in advance. FAILURE TO CANCEL SERVICES IN ACCORDANCE WITH THIS SECTION WILL RESULT IN ONGOING SERVICE FEES. You acknowledge that the cancellation will be effective 72 hours after you provide notification to us and must meet the Terms of Service.

Prohibited Uses

  1. You, your employees, agents or subcontractors may not use Services or devices in any way that is illegal, fraudulent, improper, or inappropriate. You may not use any automated means to manipulate our Services or use our Services to violate any law, rule, regulation, or any third party’s intellectual property or personal rights.
  2. You may be liable for the content transmitted to any person using your Services or devices.

Export Control

  1. Software and devices, may include cryptographic software. The country in which you reside may have restrictions on the import, possession, use, and/or re-export to another country, of encryption software. BEFORE using any encryption software, it is your responsibility to check your country’s laws, regulations and policies concerning the import, use, and re-export of encryption software.

Confidentiality and Security

  1. Services may include usernames and passwords in its protocols. Access to online account information, which may include private and confidential information, also uses usernames and passwords. You, your employees, and agents are responsible to choose complex passwords that are non-dictionary words consisting of uppercase, lowercase, and numerical digits of at least eight characters to the extent supported by specific devices and services.
  2. You are responsible for all charges incurred by a security breach caused by a weak password, former employees, and any person with physical access to hardware, or any other act of negligence.
  3. During the term of this agreement, we and you may disclose and deliver to the other certain Confidential Information. During the term of this Agreement and for a period of one (1) year thereafter, the Receiving Party shall keep in strict confidence and trust all Confidential Information of the Disclosing Party, and the Receiving Party will not use or disclose any such Confidential Information without the written consent of the Disclosing Party, except as required by the performance of the Receiving Party’s duties hereunder and except as may be required by any applicable law, regulation or valid legal process. For purposes of this Agreement, the term “Confidential Information” shall mean all written confidential or proprietary information of the Disclosing Party, including but not limited to any pricing information, contractual terms, network information, customers, vendors and suppliers of the Disclosing party. Notwithstanding the foregoing, Confidential Information shall not include any information which (a) is or becomes generally available to the public other than as a result of a disclosure by the Receiving Party in violation of this agreement, (b) was available to the Receiving Party on a non confidential basis prior to its disclosure to the Receiving Party by the Disclosing Party, (c) becomes available to the Receiving Party on a non confidential basis from a person (other than the Disclosing Party) who to the Receiving Party’s knowledge is not prohibited from disclosing such information to the Receiving Party by a legal, contractual or fiduciary obligation to the Disclosing Party, or (d) was independently developed by the Receiving Party without reference to the Confidential Information of the Disclosing Party. The Receiving Party acknowledges and agrees that the Disclosing Party is and shall remain the sole and exclusive owner of all of the Disclosing Party’s Confidential Information.

Indemnification and Liability

  1. We do not warrant that the Services will be without failure, delay, interruption, error, omission, or loss of content, data, or information. Neither we nor our directors, officers, employees, agents, or any other service provider or vendor who furnishes services, devices, or products to you for our Services will be liable for unauthorized access to our or your transmission facilities or premises or equipment or for unauthorized access to, or alteration, theft, or destruction of, your data files, programs, procedures, or information through accident, fraudulent means, devices, or any other method, regardless of whether such damage occurs as a result of our or vendors’ negligence. Statements and descriptions concerning our services or devices, if any, by us or our agents or vendors are informational and are not given as a warranty of any kind. Our failure to exercise or enforce any right or provision of this agreement will not constitute a waiver of the right of provision.
  2. In no event will we, our officers, directors, employees, affiliates, agents or any other vendor who furnishes services or devices to you in connection with our Services be liable for any damages, including but not limited to personal injury, wrongful death, property damage, loss of data, loss of revenue or profits, or damages arising out of or in connection with the use or inability to use a device or the service. These limitations apply to claims founded in breach of agreement, breach of warranty, product liability, tort, and any and all other theories of liability. These limitations apply whether or not we were informed of the likelihood of any particular type of damages.
  3. You waive all claims or causes of action arising from or relating to Services from us. You shall defend, indemnify, and hold us harmless, our officers, directors, employees, affiliates, agents, and any other service provider who furnishes services to you for our Services, from any and all claims, losses, damages, fines, penalties, costs, and expenses (including, without limitation, attorney’s fees) by, or on behalf of, you or any third party or user of our service, relating to our service, including, without limitation, your device(s), or use of our Services by you or others using your account (whether or not such usage is expressly authorized by you).
  4. Under no circumstance will our total liability exceed the fixed-cost portion of the previous three (3) months of service.
  5. PRODUCTS AND SERVICES ARE PROVIDED “AS IS.” PROVIDER DISCLAIMS ALL EXPRESS OR IMPLIED WARRANTIES, INCLUDING ALL WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, INFRINGEMENT, AND WARRANTIES RELATED TO EQUIPMENT, MATERIAL, SERVICES, OR SOFTWARE.

Dispute Resolution

  1. If we and you have a dispute that cannot be resolved through an informal process between the parties, either party may elect to arbitrate the dispute rather than litigate the dispute in court. Arbitration must be before a neutral arbitrator through the American Arbitration Association, or another arbitrator agreed upon by both parties.
  2. The arbitration provision shall survive the termination of this agreement.

Copyright and Intellectual Property

  1. This agreement confers no right to use the name, service marks, trademarks, copyrights, patents or other intellectual property rights of either party. Neither party shall take any action that would compromise the status of any registered intellectual property rights of the other party.

No Assignment

  1. This Agreement is personal to you (or the company which you represent), and may not be assigned without our express written consent. If you are agreeing on behalf of a company, you represent that you are authorized to bind the company under this Agreement.

Enforceability

  1. If any provision of this Agreement shall be held to be invalid or unenforceable, such invalidity or unenforceability shall not invalidate or render this Agreement unenforceable, but rather this agreement shall be construed as if not containing the invalid or unenforceable provision.
  2. This Agreement shall be governed by the substantive laws of the State of Utah, without regard to its choice of law rules.
  3. The headings used in this Agreement are for convenience only and do not in any way limit or otherwise affect the meaning of any terms of this Agreement. This Agreement shall be construed fairly according to its terms, without regard to the drafter of any provision hereof.
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