By subscribing to the service, You, defined in this Agreement as our Customer, agree to the following terms and conditions (the "Agreement") governing your use of the SafeEvault service plans (the “Service”). If you are entering into this Agreement on behalf of a company or other legal entity, you represent that you have the authority to bind such entity to these terms and conditions, in which case the terms "Customer" and "you and your" shall refer to such entity. If you do not have such authority, or if you do not agree with these terms and conditions, you may not use the Service.

SafeEvault agrees to provide Customer the Service for any computers Customer chooses to enroll in accordance with the following Terms and Conditions and as described in the SafeEvault Customer Software License Agreement.

1. Term of Agreement
All SafeEvault Plans have two forms of subscription, Monthly Payment Option or Annual Payment Option.

The Term commences on the date the Customer signs up for Service and makes payment for Service under this Agreement.

This Agreement will automatically renew every month (Monthly Payment Option) or year (Annual Payment Option) unless a Termination Notice is sent to SEVSupport@SafeEvault.com prior to the end of the subscription term. This Termination Notice should include: customer name, or company name and contact name, telephone number, address and requested termination date.

2. Service Fees
All charges for the Service under this Agreement shall be as specified in the pricing schedule posted on the SafeEvault website or given by a SafeEvault Account Executive, which is incorporated herein by this reference.  The fee for the Service Plan and any Supplemental Service Customer selected shall remain fixed, unless changed pursuant to the terms of this Agreement. Customer will be provided with thirty (30) days’ advance notice of any changes unless otherwise provided in this Agreement.

Pricing Schedule
Pricing is based on the total amount of data as defined by the Service Plans, including the Basic Plans, the Executive Plans, Virtual Business Continuity Plans and the Supplemental Service as is posted on the SafeEvault website at the time of your enrollment. VBCN Plans also include a one-time setup fee which is non-refundable. Charges for all Plans are based upon the peak amount of server data under protection at any time during the monthly billing cycle, rounded up to the nearest full gigabyte. Your first 30 days of enrollment after selecting a Plan and enrolling for Service is backed by our 100% money back satisfaction guarantee. In the event you are not satisfied for any reason with our Service during your first 30 days of enrollment in a Plan and you elect to terminate any further Service, SafeEvault will refund 100% of all moneys paid by you for Service during the first 30 days of your enrollment in a Plan, minus any applicable setup fees.

3. Payments
Payment is due on the specified date documented in the service agreement. Customer may choose to pay SafeEvault with a valid credit card or by company's check as a condition to signing up for the Service.

4. Cancellation Rights and Charges
Customer may cancel the Service within the first 30 days without incurring any fees or charges except the setup fees for the VBCN Plans.  Otherwise, if Service on a monthly or annual billing plan is cancelled, we will refund the remaining un-used portion on a pro rata basis or the remainder of the month or term, as appropriate.

The Cancellation Notice should be sent to SEVSupport@SafeEvault.com and should include: customer name, or company name and contact name, telephone number, address and requested cancellation date.

5. LIMITED WARRANTY
SafeEvault warrants that, if SafeEvault confirms an error or defect reported by Customer in the unaltered Services or Licensed Software provided pursuant to the terms of this Agreement, SafeEvault will use commercially reasonable efforts to remedy the nonconformance.  SafeEvault does not warrant that the operation or utilization of any Service or Licensed Software will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance.   If any Service or Licensed Software fails to comply with any warranty set forth in this Section and SafeEvault does not remedy such failure as required by this Section, SafeEvault's obligation and liability, and Your exclusive remedy, for such failure shall be limited to the refund in a maximum amount equal to the Service, license and maintenance fees paid by Customer within the last six  (6) month period prior to such failure, excluding reasonable amounts for past use, for such Services or Licensed Software, in which event this Agreement shall terminate with respect to such Services and software. Customer expressly recognizes and acknowledges that such limitation of warranty is an essential part of this Agreement and is an essential factor in establishing the price of the Services and Licensed Software. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY.

6. LIMITATION OF LIABILITY
DATA CONTENT DISCLAIMER: CUSTOMER EXPRESSLY RECOGNIZES THAT SAFEEVAULT DOES NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, THIRD-PARTY PRODUCTS, PROCESSED BY THE LICENSED SOFTWARE OR SERVICES PROVIDED VIA ANY LICENSED SOFTWARE, INCLUDING BUT NOT LIMITED TO, INFORMATION OBTAINED.  SAFEEVAULT DOES NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO CUSTOMER OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED IN CONJUNCTION WITH THE SERVICES OR LICENSED SOFTWARE OR PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; AND 3) NON-INFRINGEMENT.  SAFEEVAULT SHALL NOT BE LIABLE TO CUSTOMER OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM ANY LOSS OF DATA.

GENERAL DISCLAIMER:  SAFEEVAULT MAKES NO WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED HEREIN.  ADDITIONALLY, SAFEEVAULT DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO ALL LICENSED SOFTWARE AND PRODUCTS, UPDATES, UPGRADES, NEW RELEASES AND ALL OTHER PRODUCTS, SERVICES, MATERIALS AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT.

SAFEEVAULT AND ITS LICENSOR’S CUMULATIVE AND ENTIRE LIABILITY TO CUSTOMER AND ALL OTHER PARTIES, AND YOUR EXCLUSIVE REMEDY, FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICE OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICE, REGARDLESS OF THE FORM OF THE ACTION (INCLUDING NEGLIGENCE), WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABIILTY OR OTHERWISE, SHALL NOT EXCEED, AND SHALL BE LIMITED TO, THE TOTAL FEES PAID BY CUSTOMER DURING THE PERIOD OF SIX (6) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OF LOSS OCCURRED. Customer expressly recognizes and acknowledges that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Services and Software and Products provided pursuant to the terms of this Agreement. Customer shall cause Your insurers of data, if any, to waive any right of subrogation against SafeEvault and its Licensors and Suppliers.

EXCLUSION OF DAMAGES: IN NO EVENT SHALL SAFEEVAULT (NOR ANY OF ITS SUPPLIERS OR ITS LICENSORS) BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, OR LOST BUSINESS, THE USE OR INABILITY TO USE THE SERVICE OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICE IN CONNECTION WITH THE USE OF ANY PRODUCT OR ANY OTHER ITEM OR SERVICE PROVIDED UNDER THIS AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, NOR SHALL SAFEEVAULTBE LIABLE FOR ANY PUNITIVE, EXEMPLARY, SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING NEGLIGENCE), EVEN IF SAFEEVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.

7. FAILURE TO TIMELY PAY
Any amount not paid when due will bear late charges at the rate of one and one-quarter percent (1.15%) per month compounded on a daily basis from the date due until the date paid. Customer shall be liable for all expenses incurred in collecting charges that are in arrears, including reasonable attorneys’ fees.
If Customer fails to pay the charges of SafeEvault for a period of forty-five (45) days after the date of the invoice, SafeEvault may, after giving ten (10) business days notice by email, at its option (a) cease providing the Service and delete all data transmitted to it by Customer and/or (b) refuse requests to restore  Customer’s data. IN THE EVENT SAFEEVAULT TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO CUSTOMER OR ANYONE CLAIMING BY OR THROUGH CUSTOMER. Nothing herein shall preclude SafeEvault from pursuing other remedies authorized by statute or otherwise. 

8. TERMINATION AND SUSPENSION
Termination for Breach: SafeEvault may, by written notice to Customer, which may include electronic mail (email), terminate this Agreement, including all services, products and licenses provided or granted hereunder, if any of the following event(s) occurs: (a) the failure of Customer to pay SafeEvault in full for any fee(s) and/or charge(s) due to SafeEvault if payment is not rendered within ten (10) days after the payment was due; (b) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after receipt of written notice; (c) any material breach of license grants, license restrictions, intellectual property rights, or confidentiality provisions provided herein effective immediately upon receipt of notice from SafeEvault; or (d)  Customer’s insolvency.

9. GENERAL PROVISIONS
9.1 Force Majure
SafeEvault shall not be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by Customer by reason of such failure or delay, which is, indirectly or directly, caused by any act of God, war, fire, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of  Customer’s agents or Customer’s third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors), or any other cause beyond SafeEvault 's reasonable control.

9.2 Ownership Warranty
Customer warrants that Customer is the owner or legal custodian of the data transmitted to SafeEvault pursuant to the terms of this Agreement and that Customer has full authority to transmit said data and direct its disposition in accordance with the terms of this Agreement.

9.3 Confidentiality
“Confidential Information” means any information (without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerized or otherwise) concerning or relating to Customer’s property, business and affairs and specifically includes data transmitted from any computer. Confidential Information shall be held in confidence by SafeEvault and shall be used only for the purposes provided for in this Agreement. SafeEvault shall use the same degree of care to safeguard Customer’s Confidential Information as it utilizes to safeguard its own Confidential Information. SafeEvault may comply with any subpoena or similar order related to data on the server located within a SafeEvault authorized facility, provided that SafeEvault notifies Customer promptly upon receipt thereof, unless such notice is prohibited by law. Customer shall pay SafeEvault’s reasonable charges for such compliance.

9.4 Indemnification
Customer agrees to fully indemnify and hold harmless SafeEvault and its employees and agents for any liability, cost or expense (including litigation expenses and reasonable attorneys’ fees) arising out of (i) SafeEvault’s possession of Customer’s data, or (ii) Customer’s breach of the terms and conditions of this Agreement.

9.5 Modification; Authority; Assignment
SafeEvault may modify any aspect of this Agreement or the applicable SafeEvault Customer Software License Agreement upon 30 days prior notice. Should Customer wish to terminate the Service as a result of such modification, Customer may do so by sending a Termination Notice to SEVSupport@SafeEvault.com any time prior to the effective date of such modification; no Termination Fees will apply. Otherwise such modification will remain in effect for the remaining Term. Customer acknowledges that Customer has the authority to enter in to this Agreement on behalf of Customer or Customer’s company and that Customer may authorize other individuals to purchase additional services. This Agreement binds any of Customer’s authorized users, as well as Customer’s heirs, executors, successors, and assigns and cannot be changed orally. As a condition precedent to Customer’s installation of the SafeEvault Customer Software, Customer must elect to accept the Customer Software License Agreement. In the event Customer elects not to accept such agreement, this Agreement shall automatically terminate without further action or notice and without liability to any party. CUSTOMER IS ADVISED TO CAREFULLY REVIEW THE SAFEEVAULT CUSTOMER SOFTWARE LICENSE AGREEMENT FOR IMPORTANT INFORMATION REGARDING SERVICE REQUIREMENTS, USAGE RESTRICTIONS AND SUPPORT FUNCTIONS RELATING TO THE SERVICE. Customer shall also be responsible for complying with, and/or acknowledging, any “terms of use” and “privacy policy” posted on the SafeEvault’s web site. This Agreement may not be assigned by Customer (other than to an affiliate which shall assume the obligations of its assignor by written instrument) without the written consent of SafeEvault, which shall not be unreasonably withheld or delayed. This Agreement may be terminated and/or assigned by SafeEvault to any authorized provider of the Service by giving 30 day notice to Customer.

9.6 Dispute Resolution
Customer must present any claim in writing to SafeEvault’s within a reasonable time, and in no event longer than 180 days after the event for which the claim is presented. No legal action may be maintained against SafeEvault’s, unless timely written claim has been given as provided above, and unless such action is commenced within Two (2) years after the date after the occurrence giving rise to such cause of action.  Customer understands that this period is in lieu of any other applicable statute of limitations, unless such period is less than two years, in which event the shorter limitations period shall apply.
The parties will attempt in good faith to negotiate a resolution of any dispute arising out of or relating to this Agreement. If the dispute cannot be resolved within fifteen (15) days following receipt of presentment of a claim, either party may notify the American Arbitration Association (“AAA”), 13455 Noel Road - Suite 1750, Dallas, Texas 75240of a dispute under the terms of this Agreement.   AAA will designate an independent mediator pursuant to the terms of this Agreement.  If the dispute is not resolved by negotiation or mediation within 30 days after the first notice to AAA is sent, then, upon notice by any party to the other party and to AAA, the dispute shall be submitted to exclusive and binding arbitration to a single independent arbitrator selected by AAA for binding arbitration in accordance with AAA's Commercial Rules for Arbitration of business disputes, with exclusive venue being in Dallas, Texas. Each party hereby irrevocably waives any claim that Dallas, Texas is not a convenient forum for any arbitration proceeding. The arbitration shall be governed by the United States Arbitration Act, 9 U.S.C. Sections 1-16 (or by the same principles enunciated by such Act in the event it may not be technically applicable).  The award or judgment of the arbitrator shall be final and binding on all parties, and shall be issued in the form of a standard award.  Either party shall have the right to seek injunctive relief from the arbitrator in order to protect the rights of the parties pending the final award/judgment of the arbitrator.
Non-US Citizens/Entities. Customer agrees to submit all disputes arising out of or relating to this Agreement to final binding arbitration in accordance with the then-existing Commercial Rules of the American Arbitration Association, before a single arbitrator selected from the international division of the American Arbitration Association.  If Customer resides in Europe, the proceedings shall be held in the United Kingdom; if Customer resides in Latin America, the proceedings shall be held in Mexico City, Mexico; and if Customer resides elsewhere, Customer may choose among the U.S., U.K. or Mexico, in the locations specified above.  The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.  The parties shall comply with all applicable administrative and export/import laws, including but not limited to the Foreign Corrupt Practices Act, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations, as the same may be amended from time to time.

9.7 Governing Law
This Agreement is governed by the laws of the State of Texas, and Texas Law applies regardless of the application of any state or jurisdiction’s conflicts of laws principles.

9.8 General
This Agreement and any supplemental agreements with respect to the Service constitute the entire understanding between SafeEvault and Customer with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by SafeEvault in writing. Customer shall be responsible for and shall pay, and shall reimburse SafeEvault on request if SafeEvault is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on SafeEvault’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Service.

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