Terms of Service¶
Effective date: Aug 1, 2018
0. Definitions¶
The “Agreement” refers, collectively, to all the terms, conditions, notices contained or referenced in this document (the “Terms of Service” or the "Terms") and all other operating rules, policies (including the Privacy Statement) and procedures that we may publish from time to time on the Website.
The “Service” refers to the applications, software, products, and services provided by Exabyte.
The “Website” refers to Exabyte’s website located at exabyte.io, and all content, services, and products provided by Exabyte at or through the Website. It also refers to Exabyte-owned subdomains, such as "platform.exabyte.io" and "docs.exabyte.io".
“The User,” “You,” and “Your” refer to the individual person, company, or organization that has visited or is using the Website or Service; that accesses or uses any part of the Account; or that directs the use of the Account in the performance of its functions. A User must be at least 13 years of age. Special terms may apply for business or government Accounts (See Section B(5): Additional Terms).
“Exabyte,” “We,” and “Us” refer to Exabyte, Inc., as well as our affiliates, directors, subsidiaries, contractors, licensors, officers, agents, and employees.
“Content” refers to content featured or displayed through the Website, including without limitation text, data, articles, images, photographs, graphics, software, applications, designs, features, and other materials that are available on the Website or otherwise available through the Service. "Content" also includes Services. “User-Generated Content” is Content, written or otherwise, created or uploaded by our Users. "Your Content" is Content that you create or own.
An "Account" represents your legal relationship with Exabyte. A “User Account” represents an individual User’s authorization to log in to and use the Service and serves as a User’s identity on Exabyte. “Organizations” are shared workspaces that may be associated with a single entity or with one or more Users where multiple Users can collaborate across many projects at once. A User Account can be a member of any number of Organizations.
1. Services and Support¶
1.1 Services¶
Subject to Customer’s compliance with the terms and conditions of this Agreement, Exabyte will use best efforts to provide the Services through the Internet during Customer’s Subscription Term and for the number of authorized users (“Users”), each as specified on the Order Form.
As part of the registration process, Customer will identify an administrative user name and password for Customer’s Exabyte account (“Account”). Customer may use the administrative user name and password to manage standard user accounts (each with a user password). Exabyte reserves the right to refuse registration of, or cancel passwords it deems inappropriate.
1.2 Support¶
Subject to the terms hereof, Exabyte will use best efforts to provide Customer with basic support services during Exabyte’s regular business hours (9AM to 5PM Pacific Time), through electronic mail or telephone, in accordance with Exabyte’s standard practice. The Services are subject to modification from time to time at Exabyte’s sole discretion with an advance notification to Customer.
Exabyte reserves the right to suspend Customer’s access to the Services: (i) for scheduled or emergency maintenance, (ii) unavailability of services (including network and hosting services) provided by a third party service provider, or (iii) in the event Customer is in breach of this Agreement, including failure to pay any amounts due to Exabyte.
2. Restrictions and Responsibilities¶
2.1 Restrictions¶
Customer shall not (and shall not permit any third party to), directly or indirectly: (i) reverse engineer, decompile, disassemble, or otherwise attempt to discover the source code, object code, or underlying structure, ideas, or algorithms of the Service (except to the extent applicable laws specifically prohibit such restriction); (ii) modify, translate, or create derivative works based on the Service or any software, documentation or data related to the Services (“Software”); (iii) copy, rent, lease, distribute, pledge, assign, or otherwise transfer or encumber rights to the Service; (iv) use the Service for the benefit of a third party; (v) remove or otherwise alter any proprietary notices or labels from the Service, or any portion thereof; or (vi) use the Service to build an application, product or service that is competitive with any Exabyte product or service.
Customer is responsible for all of Customer’s activity in connection with the Service, including but not limited to uploading CustomerContent (as defined below) onto the Service. Customer shall use the Service in compliance with all applicable local, state, national and foreign laws, treaties and regulations in connection with Customer’s use of the Service, including those related to data privacy, international communications, export and the transmission of technical or personal data, consumer and child protection, obscenity or defamation.
2.2 Responsibilities¶
Customer shall not (and shall not permit any third party to), directly or indirectly, (a) take any action or (b) upload, download, post, submit or otherwise distribute or facilitate distribution of any material on or through the Service, that: (i) infringes any patent, trademark, trade secret, copyright, right of publicity or other right of any other person or entity; (ii) is unlawful, threatening, abusive, harassing, defamatory, libelous, deceptive, fraudulent, invasive of another's privacy, tortious, obscene, offensive, or profane; (iii) contains software viruses or any other computer codes, files, or programs that are designed or intended to disrupt, damage, limit or interfere with the proper function of any software, hardware, or telecommunications equipment or to damage or obtain unauthorized access to any system, data, password or other information of Exabyte or any third party; or (iv) impersonates any person or entity, including any employee or representative of Exabyte.
Additionally, Customer shall not: (i) interfere or attempt to interfere with the proper working of the Service or any activities conducted on the Service; or (ii) bypass any measures Exabyte may use to prevent or restrict access to the Service (or other accounts, computer systems or networks connected to the Service). Customer hereby agrees to indemnify and hold harmless Exabyte against any damages, losses, liabilities, settlements and expenses (including without limitation costs and attorneys’ fees) in connection with any claim or action that arises from an alleged violation of the foregoing or otherwise from Customer’s use of Services. Although Exabyte has no obligation to monitor the content provided by Customer or Customer’s use of the Services, Exabyte may do so and may remove any such content or prohibit any use of the Services it believes may be (or alleged to be) in violation of the foregoing.
3. Confidentiality¶
Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose information relating to theDisclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to divulge to any third person any such Proprietary Information. The Disclosing Party agrees that the foregoing shall not apply with respect to any information after three years following the disclosure thereof or any information that the Receiving Party can document (a) is or becomes generally available to the public, or (b) was in its possession or known by it prior to receipt from the Disclosing Party, or (c) was rightfully disclosed to it by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party, or (e) is required by law. In any event, Exabyte may use for development, diagnostic and corrective purposes any data and information it collects relating to the Services.
4. Intellectual property rights¶
4.1 Exabyte¶
Except as expressly set forth herein, Exabyte alone (and its licensors, where applicable) will retain all intellectual property rights relating to the Services or the Software or any suggestions, ideas, enhancement requests, feedback, recommendations or other information provided by Customer or any third party relating to theService and/or the Software, which are hereby assigned to Exabyte. Customer will not copy, distribute, reproduce or use any of the foregoing except as expressly permitted under this Agreement. This Agreement is not a sale and does not convey to Customer any rights of ownership in or related to the Service or Software, or any intellectual property rights.
4.2 Customer¶
Exabyte will obtain and process content/data provided by or on behalf of Customer (“Customer Content”) only to provide the Services and perform its obligations under this Agreement. Customer and its licensors shall (and Customer hereby represents and warrants that they do) have and retain all right, title and interest(including, without limitation, sole ownership of) all Customer Content on the Services and the intellectual property rights with respect to that Customer Content. If Exabyte receives any notice or claim that any Customer Content, or activities hereunder with respect to any Content, may infringe or violate rights of a third party (a“Claim”), Exabyte may (but is not required to) suspend activity hereunder with respect to that Customer Content and Customer will indemnify Exabyte from all liability, damages, settlements, attorney fees and other costs and expenses in connection with any such Claim, as incurred. As between Exabyte and Customer, Customer owns all right, title and interest in and to the Customer Content.
5. Payment of fees¶
Customer shall pay Exabyte fees for the Service as set forth in the Order Form (“Fees”). Unless otherwise specified in the Order Form, all Fees shall be charged in advance Payment Schedule section set forth in the Order Form. Customer shall be responsible for all taxes associated with Service other than taxes based onExabyte’s net income. All Fees paid are non-refundable and are not subject to set-off.
6. Termination¶
6.1 Procedure¶
In addition to any other remedies it may have, either party may terminate this Service Agreement upon fourteen (14) days’ notice (or ten (10) days in the case of nonpayment), if the other party breaches any of the terms or conditions of this Service Agreement. Customer will pay in full for the Services up to and including the last day on which the Services are provided. Upon any termination, Exabyte may, but is not obligated to, delete archived data.
6.2 Survival¶
All sections of this Service Agreement which by their nature should survive termination will survive termination, including, without limitation, accrued rights to payment, confidentiality obligations, warranty disclaimers, and limitations of liability.
7. Limited Warranty and Disclaimer¶
During the Subscription Term, Exabyte shall use commercially reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by Exabyte or by third-party providers, or because of other causes beyond Exabyte’s reasonable control, but Exabyte shall use commercially reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption.
HOWEVER, EXABYTE DOES NOT WARRANT THAT THE SERVICES WILL BE UNINTERRUPTED OR ERROR FREE; NOR DOES IT MAKE ANY WARRANTY AS TO THE RESULTS THAT MAY BE OBTAINED FROM USE OF THE SERVICES. THE SERVICES AND SOFTWARE ARE PROVIDED “AS IS” AND EXABYTE DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT AND FITNESS FOR A PARTICULAR PURPOSE.
8. Limitation of Liability¶
NOTWITHSTANDING ANYTHING TO THE CONTRARY, EXCEPT FOR BODILY INJURY OF A PERSON, EXABYTE AND ITS SUPPLIERS, OFFICERS, AFFILIATES, REPRESENTATIVES, CONTRACTORS AND EMPLOYEES SHALL NOT BE RESPONSIBLE OR LIABLE WITH RESPECT TO ANY SUBJECT MATTER OF THIS AGREEMENT OR TERMS AND CONDITIONS RELATED THERETO UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY: (A) FOR ERROR OR INTERRUPTION OF USE OR FOR LOSS OR INACCURACY OR CORRUPTION OF DATA OR COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF EXABYTE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH LOSS OR DAMAGE; (C) FOR ANY MATTER BEYOND EXABYTE’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO EXABYTE FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY.
9. Miscellaneous¶
If any provision of this Agreement is found to be unenforceable or invalid, that provision will be limited or eliminated to the minimum extent necessary so that this Agreement will otherwise remain in full force and effect and enforceable. This Agreement is not assignable, transferable or sublicensable by Customer except with Exabyte’s prior written consent. Exabyte may transfer and assign any of its rights and obligations under this Agreement without consent. Both parties agree that this Agreement is the complete and exclusive statement of the mutual understanding of the parties and supersedes and cancels all previous written and oral agreements, communications and other understandings relating to the subject matter of this Agreement, and that all waivers and modifications must be in a writing signed by both parties, except as otherwise provided herein.
No agency, partnership, joint venture, or employment is created as a result of this Agreement and Customer does not have any authority of any kind to bind Exabyte in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will been titled to recover costs and attorneys’ fees. All notices under this Agreement will be in writing and will be deemed to have been duly given when received, if personally delivered; when receipt is electronically confirmed, if transmitted by facsimile or e-mail; the day after it is sent, if sent for next day delivery by recognized overnight delivery service; and upon receipt, if sent by certified or registered mail, return receipt requested. This Agreement shall be governed by the laws of the State of California without regard to its conflict of laws provisions. The federal and state courts sitting in San Francisco, California, U.S.A. will have proper and exclusive jurisdiction and venue with respect to any disputes arising from or related to the subject matter of this Agreement.