Storagewhale General Terms of Service

 

These General Terms of Service (the “General Terms”) govern your use of Storage Whale’s products and services (collectively, the “Products and Services”). The term of these General Terms shall be the duration of your use of the Products and Services. By registering a Customer Account (as defined below) or using any of the Products and Services, you agree to these General Terms, including terms that limit our liability (see Section 14), require individual arbitration for any potential legal dispute (see Section 17) and authorize contracting through electronic systems (see Section 19). You also agree that certain Products and Services are subject to additional terms, including applicable Product and Service Specific Terms (see Section 2, and “Requirements” and “Restrictions” which mean, respectively, (a) technical requirements and specifications and (b) limitations on your use of the applicable Products and Services, as such Requirements and Restrictions are set forth in the FAQ or otherwise made known to you via the website or Documentation (as defined below). The Privacy Policy, Requirements, Restrictions, FAQs, website, and other user manuals and information designed to assist you in use and operation of the Products and Services (collectively, the “Documentation”), these General Terms and the Product and Service Specific Terms are collectively referred to as the “Agreement”.  These General Terms apply solely to Products and Services for consumer use. If you are purchasing Storage Whale products and services designed for use with an enterprise, those products and services are governed by the General Enterprise Terms.

 

  1. Parties to the Agreement.

This Agreement is a legal contract between Storage Whale LLC on behalf of itself and its affiliates and subsidiaries (collectively, “Storage Whale,” “we,” “our” or “us”) and you (“you”, “your” or “Customer”).  You represent and warrant to us that: (a) you are least eighteen (18) years of age; (b) you are eligible to register and use the Products and Services and have the right, power, and ability to enter into and perform under the Agreement and (c) your use of the Products and Services will be in compliance with the terms and conditions of the Agreement and all applicable laws. If you are acting on behalf of a third party (“Third Party End-User”), you represent and warrant that: (a) you are authorized to make the purchase and enter into this Agreement on behalf of the Third Party End-User as that party’s agent and (b) that the Third Party End-User is bound by this Agreement. If you enter into this Agreement on behalf of a Third Party End-User, you agree that you are jointly and severally liable for any breach of this Agreement resulting from your acts and omissions, or the acts and omissions of the Third Party End-User or any Authorized User (as defined below) of the Third Party End-User.

 

  1. Product and Service Specific Terms.

In the event of a conflict between provisions that appear in different documents, the order of precedence will be the Requirements, Restrictions, the Product and Service Specific Terms listed below (if any)(appended to these General Terms), the General Terms and the provisions in any other parts of the Documentation.

 

 

(a) Technical Support. These terms apply to Storage Whale’s technical support services (the “Technical Support Services”).

(b) Website Terms of Use.  These terms apply to your use of Storage Whale’s websites and portals.

 

  1. HIPAA.

Unless otherwise agreed in writing, (i) Storage Whale does not intend that your use of the Products and Services will create obligations for Storage Whale to comply with HIPAA, (ii) Storage Whale makes no representations that the Products and Services satisfy HIPAA requirements, and (iii) you agree not to use the Products and Services in connection with any Protected Health Information (as defined in HIPAA).

  1. Customer Account Registration.

You are required to register an account with us (a “Customer Account”) in order to use the Products and Services. During registration of a Customer Account, you agree to provide accurate and complete information in response to our questions, and you further agree to promptly update this information should it change. In connection with use of the Customer Account, a Customer may authorize itself and others (collectively, “Authorized Users”) to use the Products and Services on Customer’s behalf. Each Authorized User will establish or be provided a username and password, and may also establish or be provided other access credentials, such as an encryption key (collectively, “Access Credentials”). You will, and will ensure that each of your Authorized Users will, keep the Access Credentials confidential and ensure that they are not disclosed to any third party. You are responsible for the acts and omissions of your Authorized Users. You, and not Storage Whale, are fully responsible for all activity that occurs under your Customer Account using the Access Credentials, including any loss or deletion of Customer Content (as defined below). We reserve the right to suspend or terminate the Customer Account, or the access of any Authorized User, for any reason, including if any registration information is inaccurate, untrue or incomplete, or if you or any of your Authorized Users fail to maintain the security of any Access Credentials. You agree to, and will ensure that each Authorized User will, notify us at [email protected] immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.

 

  1. Mobile Applications.

Storage Whale is developing a mobile device platform, but does not currently offer a mobile device backup service.

 

  1. Free Services and Pre-release Services.

(a) Free Services. We may offer free Products and Services, including free trials of the Products and Services (“Free Services”). The Free Services and Pre-release Services (as defined below) (together, the “Evaluation Services”) require an active Customer Account and are subject to the time limits that are made known to you via email or the Documentation. You acknowledge and agree that: (a) your use of the Evaluation Services is for the sole purpose of evaluating and testing the applicable Products and Services and providing feedback to us; (b) your use of the Evaluation Services will be in compliance with the Documentation and any Restrictions and Requirements made known to you; (c) you will not store Customer Content (as defined below) that is sensitive in nature, including personally identifiable information, Protected Health Information or sensitive financial information with the Evaluation Services; (d) you will inform your Authorized Users of the nature of the limitations on use of the Evaluation Services and (e) you will use the Evaluation Services solely in a non-production environment. Access to Evaluation Services associated with your Customer Account that remain inactive for a period of thirty (30) calendar days or more may be terminated and your Customer Content irretrievably deleted. We assume no liability for the loss of any such Customer Content. Storage Whale, in its sole discretion, may discontinue the Evaluation Services at any time, at which point your access to the Evaluation Services will end and any Customer Content shall be irretrievably deleted.

 

(b) Pre-release Services. We may designate new products, services, enhancements or features as pre-release, alpha or beta services (collectively, “Pre-Release Services”). In addition to the terms set forth in Section 6(a), you agree that the Pre-Release Services are experimental in nature, have not been fully-tested and may be discontinued at any time with or without notice. You agree to assist us in testing, evaluating, refining and improving the applicable Pre-Release Services. You agree to promptly report problems to us whenever the Pre-Release Services do not perform in accordance with the Documentation. Periodically and at our request, you may provide us with comments, criticisms, suggested improvements and other feedback, about the use, operation, functionality and features of the Pre-Release Services (collectively, the “Pre-Release Feedback”).  You agree that we have the right to use the Pre-Release Feedback in the same manner that we have the right to use other Feedback (as defined herein).

 

  1. Cloud Services.

(a) Access Grant.  Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use Storage Whale’s cloud services (the “Cloud Services”) solely: (i) for your personal use; (ii) in accordance with the applicable Documentation; and (ii) in accordance with any Restrictions and Requirements applicable to the Cloud Services. Customer’s authorization to use the Cloud Services is non-exclusive, non-transferable, non-sublicensable, terminable and limited to the Restrictions as set forth in the specific Products and Services Documentation.

 

(b) Software Client.  The Cloud Services require software be installed within your Environment (as defined below) (the “Client Software”). Subject to the terms and conditions of this Agreement, Storage Whale grants to you a non-exclusive, non-transferable, revocable, fee-bearing, limited license (without the right to sublicense) to install, execute and use the Client Software solely: (i) in object code format; (ii) for your personal use, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with any Restrictions, Requirements and Documentation applicable to the Cloud Services. Your license in the Client Software is co-terminus with your right to access the Cloud Services for which the Client Software is required.

 

  1. Access Authorization.

Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use customer portals (the “Customer Portals”) that are made available to you in connection with the Products and Services, solely for your personal use and solely in accordance with the Documentation. Your authorization to use the Customer Portals is non-exclusive, non-transferable, non-sublicensable and terminable.

 

  1. Customer Acknowledgements and Obligations.

You acknowledge and agree to the following:

 

(a) License. You grant to Storage Whale a worldwide, non-exclusive, royalty-free, fully-paid up, transferable and sublicensable right to use, reproduce and store the Customer Content for the purpose of performing this Agreement, improving the Products and Services, and as otherwise provided in our Privacy Policy. You retain all rights in the Customer Content, subject to the rights granted to Storage Whale in this Agreement. You may modify or remove the Customer Content via the Customer Account. Customer Content will be irretrievably deleted upon (i) you or your Authorized User’s deletion of Customer Content or (ii) cancellation, termination or non-renewal of the Customer Account or subscription to the Products and Services. Storage Whale may remove Customer Content at any time, for any reason, with or without notice.

 

(b) Requirements and Environment. Storage Whale offers different Products and Services, with different Restrictions and Requirements, each of which are designed to address the needs of a broad range of customers. You acknowledge and agree that (i) you assessed your data protection needs, network environment and the technical specifications and cost of each of the Products and Services; (ii) you are solely responsible for making the appropriate selection of the Products and Services even if a Storage Whale representative has provided guidance to you regarding the Products or Services that you select; (iii) you are solely responsible for ensuring that you comply with the applicable Requirements and Restrictions; (iv) you are solely responsible for ensuring that you maintain and operate the information technology infrastructure from which the applicable Products and Services copies, maintains and transfers the Customer Content, including the databases, applications, files, software, computer, server,  or any other device registered with Storage Whale (including, to the extent applicable, hardware delivered to you as part of any Product or Service) (collectively, your “Environment”); and (vi) if you exceed the storage allocated to your Customer Account, you acknowledge and agree that Storage Whale may restrict your ability to back up further data until you reduce your storage usage, add storage packs, or purchase another type of Product and Service with higher or unlimited storage.

 

(c) Customer Conduct. The Products and Services include functionality that enables you and your Authorized Users to copy, maintain, sync, transfer and upload text, graphics, photos, videos, presentations and other materials or information (“Customer Content”) pursuant to the terms of this Agreement, including the Requirements and Restrictions. You represent and warrant that your Customer Content and you and your Authorized User’s, use of the Storage Whale website, portals, Products and Services, and the technology related thereto, shall not (i) interfere with the proper working of the Products and Services or impose an unreasonably large load on Storage Whale’s infrastructure; (ii) give rise to civil or criminal liability, e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (iii) violate or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses, harasses or stalks any other person; or (iv) initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.

 

(d) User Restrictions on Intellectual Property.  You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i) access or use the Products and Services in any manner or for any purpose other than expressly permitted by the Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the Products and Services; (iii) modify, disassemble, decompile or reverse engineer any part of the Products and Services or apply any other process or procedure to derive source code of any software included in the Products and Services (except solely to the extent permitted by applicable law); (iv) access or use the Products and Services in a way intended to avoid exceeding usage limits or quotas; (v) use the Products and Services in order to build a similar or competitive application or service; (vi) remove, tamper with or alter any disabling mechanism or circumvent any technical protection measures associated with the Products and Services, or otherwise use any tool to enable features or functionalities that are otherwise disabled in the Products and Services; (vii) resell or sublicense the Products and Services (except as solely to the extent permitted by applicable law); or (viii) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the Products and Services.

 

(e) Changes to Products and Services. Storage Whale may periodically update or upgrade the Products and Services. You acknowledge and agree that Storage Whale may automatically download and install such updates and upgrades onto your device(s) or notify you of the need to update or upgrade your Products and Services and then you or your Authorized Users are solely responsible for applying patches that Storage Whale makes available. Where applicable, you will grant Storage Whale access to your device, which provides access tokens or keys, permitting licensed software to run on your device. You acknowledge and agree that Storage Whale may, at any time and without notice to you, discontinue, suspend or modify the Products and Services, any functionality or feature of the Product and Services or the availability of the Products and Services on any particular device or hardware.

 

(f) Law Enforcement. If Storage Whale reasonably suspects that Customer’s Account has been used for an unauthorized, illegal or criminal purpose, or law enforcement requests access to Customer’s Account or Customer Content via a validly issued subpoena, an investigative demand or warrant, you hereby give Storage Whale express authorization to share information about you, your Customer Account, Customer Content, and any of its transactions with law enforcement.

 

  1. Fees and Payment.

(a) Fees. You agree to pay all fixed and variable usage-based fees (if any) (collectively, “Fees”) for the Products and Services as specified at the time of purchase. Unless otherwise indicated at the time of purchase, all Fees exclude sales, use, value-add and similar taxes (collectively, “Sales and Use Taxes”), import tariffs, and shipping and handling fees, which shall be your responsibility. You shall indemnify, defend and hold Storage Whale harmless for any liability or expense Storage Whale may incur in connection with the failure to pay, or collection of, any Fees, Sales and Use Taxes, import tariffs or shipping and handling fees.

 

(b) Payment and Credit Cards. For Products and Services purchased directly from Storage Whale’s website or portals, Storage Whale may utilize a third party to process credit card payments on Storage Whale’s behalf (“Payment Provider”). Payment Provider’s policies govern the processing of your payment, and you must refer to those policies and not this Agreement to determine your rights and liabilities. For a list of the Payment Providers Storage Whale currently uses, please write to [email protected] You agree to provide Storage Whale’s Payment Provider with a valid credit card (Visa, MasterCard or any other branded credit card accepted by Storage Whale) (the “Card-on-File”) as a condition to such transactions. By providing your Card-on-File, you authorize Storage Whale, through our Payment Provider, to immediately charge the Fees to the Card-On-File for the Initial Term and any Renewal Term (as defined herein).

 

(c) Subscription Renewals.

(i) Charges for Auto-Renewing Subscriptions.  You acknowledge and agree that your Card-on-File will be automatically charged recurring renewal Fees on the first day of the Renewal Term (as defined herein) unless you cancel your Subscription (as defined herein) or change your auto renewal preferences, either through the password-protected customer portal or by contacting Storage Whale’s Customer Care Team at [email protected] If you cancel a Subscription (as defined herein), you will continue to have access to the applicable Products and Services through the end of the then-current term, but you will not be entitled to a refund or credit for any Fees already due or paid.  We reserve the right to change the Fees associated with any Products and Services upon thirty (30) days’ advance notice. Your continued use of the Products and Services after notice of a change to our Fees will constitute your agreement to such changes.

(ii) Maintenance of Card-On-File. You agree to notify us of any changes required to keep your Card-on-File current and accurate. Your failure to maintain your Card-On-File may result in an interruption of your use of the Products and Services.

 

  1. Term and Termination.

(a) Term. The term of your access to the Products and Services (a “Subscription”) will continue for the period identified at the time of your purchase (the “Initial Term”).  The Subscription will automatically renew for successive terms equal to the applicable Initial Term (each a “Renewal Term”).

 

(b) Termination for Material Breach. Storage Whale may terminate this Agreement and your Subscription at its discretion, effective immediately, for non-payment or if you materially breach any provision of this Agreement and do not substantially cure the breach with thirty (30) days after receiving written notice.

 

(c) Termination Upon Bankruptcy or Insolvency.  Storage Whale may, at its option, terminate this Agreement immediately upon written notice to you, in the event: (i) you become insolvent or unable to pay your debts when due; (ii) you file a petition in bankruptcy, reorganization or similar proceeding, or, if filed against you, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of your creditors.

 

(d) Suspension. Storage Whale may, at any time and in its sole discretion, suspend access to any Products and Services for one or all of your Authorized Users, including but not limited to, the following reasons: (i) a threat to the security or integrity of the Products and Services, (ii) you have materially breached this Agreement or (iii) any amount due under this Agreement is not received by Storage Whale within fifteen (15) days after it was due.

 

(e) Effects of Termination.  Upon termination or expiration of this Agreement or any Subscription for any reason, (i) any amounts owed to Storage Whale before such termination or expiration will be immediately due and payable, (ii) all license and access rights granted will immediately cease to exist; (iii) access to Customer Content will immediately cease,  and; (iv) all Customer Content will be irretrievably deleted. Those provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement or a Subscription shall so survive.

 

  1. Security.

We have implemented administrative, physical and technical safeguards designed to secure your Customer Account and Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the Customer Account and Customer Content for improper purposes. You provide your Customer Account details and Customer Content to us at your own risk.  You are solely responsible for safeguarding, and ensuring that your Authorized Users safeguard, the Access Credentials.

 

  1. Proprietary Rights.

(a) Reservation of Rights.  You acknowledge and agree that the software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Products and Services (“our Technology”) and the content made available or displayed by us through the Products and Services, including all text, graphics, images and the look and feel of such Products and Services (collectively “our Content”) are owned by or licensed to Storage Whale, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to our Technology or our Content to you, either expressly, or by implication, estoppel, or otherwise.  Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, Storage Whale reserves all right, title and interest in and to our Technology and our Content. No right or license is granted by Storage Whale to you or your Authorized Users to use any Storage Whale trademark, trade name, service mark, product name or other source designator.

 

(b) Continuous Development. Storage Whale may continually develop and provide ongoing innovation to the Products and Services in the form of new features, functionality, and efficiencies. In the event Storage Whale adds new features or functionality (collectively, “Functionality”) to a particular Product or Service, Storage Whale may offer the Functionality to you at no additional charge or, if Storage Whale generally charges customers for such functionality, Storage Whale may condition your use of the Functionality on the payment of additional Fees.

 

(c) Feedback. In the course of using the Products and Services, you or your Authorized Users may provide Storage Whale reports, comments, suggestions or ideas relating the Products and Services (“Feedback”). Storage Whale shall have no obligation to incorporate Feedback into any Product or Service, and you shall have no obligation to provide Feedback. Storage Whale shall have no obligation to treat such Feedback as your confidential or trade secret information. You, on behalf of yourself and your successors in interest, grant to Storage Whale a world-wide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to use, profit from, disclose, publish, or otherwise exploit any Feedback. Without limiting the generality of the foregoing, you agree that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to any aspects of the Products and Services, even if such Feedback leads Storage Whale to create new Products or Services. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement or the Documents shall apply to Feedback.

 

(d) Open Source Software. The Products and Services may contain redistributables, agents or other code resident on your devices that includes open source software. Some of the provisions of the licenses granted to Storage Whale may apply to your use of such open source software. A list of such open source software can be found here and/or in notices or acknowledgement files.

 

  1. General Disclaimers.

THE USE OF “STORAGE WHALE” IN SECTIONS 12, 13 AND 14 MEANS STORAGE WHALE, ITS AFFILIATES, PARTNERS, PROCESSORS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, MEMBERS, MANAGERS, DIRECTORS AND EMPLOYEES). THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, STORAGE WHALE SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  STORAGE WHALE DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE PRODUCTS AND SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT,  THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE PRODUCTS AND SERVICES GENERALLY WILL BE SECURE. STORAGE WHALE DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES: (i) WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS OR THOSE OF YOUR AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR YOUR AUTHORIZED USERS.   

  1. Specific Disclaimers.

(a) YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES.

(b) YOUR ACCESS TO AND USE OF THE PRODUCTS AND SERVICES ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, AND THE LOSS OR DAMAGE OF YOUR CUSTOMER CONTENT.

(c) DEPENDING ON THE PRODUCTS AND SERVICES YOU CHOOSE TO UTILIZE, YOUR CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) YOUR CUSTOMER CONTENT;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE PRODUCTS AND SERVICES DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) YOU DELETE CERTAIN CUSTOMER CONTENT FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO STORAGE WHALE’S OR YOUR OWN DATA RETENTION POLICIES, OR YOU DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
(iv) YOU MOVE CUSTOMER CONTENT TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING;
(v) CUSTOMER’S CONTENT IS CORRUPTED;
(vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) ANY HARDWARE PROVIDED TO YOU AS PART OF THE PRODUCTS AND SERVICES (IF ANY) IS UNABLE TO CONNECT TO YOUR DEVICES AND YOU DO NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
(viii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH STORAGE WHALE’S SERVERS OR NETWORK;
(ix) YOU FAIL TO FOLLOW STORAGE WHALE’S TECHNICAL REQUIREMENTS AND THE DOCUMENTATION FOR UTILIZING THE PRODUCTS AND SERVICES, INCLUDING UPGRADING THE PRODUCTS AND SERVICES OR FAILING TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
(x) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR YOUR ACCESS TO THE PRODUCTS AND SERVICES HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.

(d)  THE PRODUCTS AND SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT STORAGE WHALE DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS. YOU ACKNOWLEDGE AND AGREE STORAGE WHALE IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.

(e) YOU ACKNOWLEDGE AND AGREE THAT STORAGE WHALE’S MERCHANT PROCESSING SERVICE WILL PROCESS AND STORE YOUR CREDIT CARD INFORMATION. IN THE EVENT OF A SECURITY BREACH INVOLVING YOUR CREDIT CARD INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE RECOURSE IS AGAINST THESE THIRD-PARTY VENDORS WHO PROCESS AND STORE YOUR CREDIT CARD INFORMATION, AND NOT STORAGE WHALE.

(f)  YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT STORAGE WHALE SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CUSTOMER ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE PRODUCTS AND SERVICES.


(g) YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY STORAGE WHALE OR ANY STORAGE WHALE EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF STORAGE WHALE’S OBLIGATIONS HEREUNDER.

  1. Disclaimers of and Limitations on Certain Remedies.

(a) No Consequential and Similar Damages.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL STORAGE WHALE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCTS AND SERVICES, EVEN IF STORAGE WHALE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE).

(b) No Procurement of Substitute Services or Customer Content.  IN NO EVENT WILL STORAGE WHALE BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT.  UNDER NO CIRCUMSTANCES WILL STORAGE WHALE BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PRODUCTS AND SERVICES, YOUR CUSTOMER ACCOUNT OR THE CUSTOMER CONTENT.

(c) Limitation on Aggregated Damages.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF STORAGE WHALE FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY YOU TO STORAGE WHALE IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) FIVE HUNDRED DOLLARS ($500.00).  IF THE PRODUCTS AND SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN STORAGE WHALE WILL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.

(d) YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE PRODUCTS AND SERVICES AND STORAGE WHALE’S WILLINGNESS TO PROVIDE YOU THE PRODUCTS AND SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.

(e) THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

  1. Indemnity. 

You will indemnify, defend, and hold Storage Whale (and its processors, respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement; (b) your wrongful or improper use of the Products and Services; (c) your violation of any third party’s rights, including without limitation, any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any other party’s access and/or use of the Products or Services using your Access Credentials or the Access Credentials of any of  your Authorized Users and (f) use of your Customer Content. Storage Whale reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Storage Whale and you agree to cooperate with Storage Whale’s defense of these claims. You agree not to settle any matter without Storage Whale’s prior written consent. Storage Whale will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

  1. Export Controls and Trade Sanctions Compliance.

Your use of the Products and Services is subject to compliance with United States and other applicable export control and trade sanctions laws, rules and regulations, including without limitation, the U.S. Export Administration Regulations, administered by the U.S. Department of Commerce’s Bureau of Industry and Security (“BIS”) and U.S. trade sanctions, administered by the U.S. Department of the Treasury’s Office of Foreign Assets Control (“OFAC”) (collectively, “Export Control Laws”).  You will not export, re-export, download or otherwise transmit the Products and Services, or technical data relating thereto, in violation of any applicable Export Control Laws. In particular, You acknowledge that the Products and Services, or any part thereof, may not be exported, transmitted, or re-exported to, or otherwise used in: (a) any country subject to a U.S. embargo or comprehensive trade sanctions or that has been designated a state sponsor of terrorism by the U.S. Government  (“Sanctioned Countries”); or (b) anyone identified on any U.S. Government restricted party lists (including without limitation, the Specially Designated Nationals and Blocked Persons List, Sectoral Sanctions Identifications List, and Foreign Sanctions Evaders List, administered by OFAC, and the Entity List, Denied Persons List, and Unverified List administered by BIS) (collectively, “Restricted Party Lists”). By purchasing a Product or Service, you represent and warrant that it is not located in any Sanctioned Country or on any Restricted Party List. You acknowledge that the Products and Services may not be available in all jurisdictions and that you are solely responsible for complying with applicable Export Control Laws related to the manner in which you choose to use the Products and Services, including your transfer and processing of your Customer Content and the region in which any of the foregoing occur.

  1. Dispute Resolution.

Please read the following arbitration agreement in this Section 19 carefully (“Arbitration Agreement”).  It requires you to arbitrate disputes with Storage Whale and limits the manner in which you can seek relief from us.

(a) Applicability of Arbitration Agreement, Rules and Forum. You agree that any dispute or claim relating in any way to this Agreement, including but not limited to, arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach of this Agreement, your access or use of the Products and Services, or to any aspect of your relationship with Storage Whale, will be resolved by binding arbitration, rather than in court. This Arbitration Agreement will apply to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement. Such disputes and claims shall be referred to and finally determined by arbitration in accordance with the American Arbitration Association Commercial Arbitration Rules and Procedures, and shall take place before a sole arbitrator, and shall be conducted in Salt Lake County, Utah.

(b) Waiver of Jury Trial.  YOU AND STORAGE WHALE HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Storage Whale are instead electing that all claims and disputes will be resolved by final, binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration and court review of an arbitration award is subject to very limited review.

(c) Waiver of Class or Consolidated Actions.  IF YOU AGREE TO THIS AGREEMENT AND/OR USE THE PRODUCTS AND SERVICES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST STORAGE WHALE ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST STORAGE WHALE IN AN INDIVIDUAL ARBITRATION PROCEEDING.  CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT PRIOR TO USING THE PRODUCTS AND SERVICES, INCLUDING THIS ARBITRATION AGREEMENT. If a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Storage Whale’s rights to appeal the court’s decision. All other claims will be arbitrated. 

(d) SeverabilityExcept as otherwise provided under the terms and conditions of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.

(e) Survival of Agreement. This Arbitration Agreement will survive the termination of your relationship with Storage Whale.

(f) Modification.  Notwithstanding any provision in this Agreement to the contrary, it is agreed that if Storage Whale makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) already in progress or that you have has already provided written notice to Storage Whale.

  1. Governing Law. 

These General Terms and any dispute arising hereunder will be governed by the laws of the State of Utah and/or applicable federal law (including the Federal Arbitration Act) without regard to its choice of law or conflicts of law principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Storage Whale agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Salt Lake County, Utah.  

  1. Electronic Communications. 

By using the Products and Services, you acknowledge that we communicate with you electronically to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. For contractual purposes, you (a) consent to receive communications from Storage Whale in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Storage Whale provides to you electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Storage Whale’s website, or within twenty-four (24) hours of the time emailed to you.

  1. Contacting Storage Whale.

To contact Storage Whale regarding this Agreement (i) email [email protected] or (ii) write to STORAGE WHALE CUSTOMER SUPPORT, 145 West 7200 South, Suite A, Midvale, Utah 84047.

  1. Changes in this Agreement.

We may amend the General Terms, any Product and Service Specific Terms, or our Documentation, at any time in our sole discretion, by posting the revised version on our website and/or communicating it to you (each a “Revised Version”). The Revised Version will be effective thirty (30) days from the time it is posted. Your continued use of the Products and Services after the posting of a Revised Version constitutes your acceptance of such Revised Version.

  1. Assignment. 

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.  We may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all or a portion of our assets, stock or business. If another entity merges with or acquires Storage Whale, or all, substantially all or a portion of Storage Whale’s assets, stock or business you agree your encrypted stored data and information that Storage Whale has collected from you, including personally identifiable information, may, and you consent to, the secure transfer of such information to such successor or assignee.  

  1. Force Majeure. 

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

  1. Government Use.

The Products and Services constitute Commercial Off the Shelf (“COTS”) items as that term is defined in the U.S. Government Federal Acquisition Regulations (“FAR”). Government use rights are limited to those minimum rights required by the appropriate provisions of the FAR.

  1. Other Provisions.

These General Terms, the Product and Service Specific Terms, and the Documentation, are a complete statement of the agreement between you and Storage Whale regarding the Products and Services and the matters covered in this Agreement. You acknowledge and agree there are no third-party beneficiaries to this Agreement. If any provision of the Agreement is invalid or unenforceable under applicable law, then it will be changed, interpreted or severed, as appropriate to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.

Last Updated: May 2019