MOZY TERMS OF SERVICE

MOZY TERMS OF SERVICE

These terms of service ("Terms") are a legal agreement between you, either an individual or a single legal entity ("You" or "you"), and the entity identified in Section 1 that operates that Mozy online services for your country of residence (“Mozy”). These Terms govern your use of any Mozy online services ("Services"), the Mozy website (“Site”), the client software distributed with this Agreement and any other software provided by Mozy, including any updates and any accompanying documentation ("Software"). Collectively, the Software, the Site and the Services may be referred to as the “Products.” By clicking the “I AGREE” or similar button, or using any Products, you agree to these Terms and the Mozy Privacy Policy mentioned in Section 4 below. If you do not agree to these Terms or the Privacy Policy, then do not click the button indicating your acceptance and do not use the Products. If you agree to these Terms on behalf of a legal entity, you represent that you have the authority to bind that legal entity to these Terms.

1. CONTRACTING ENTITY

If you are a resident of the United States of America, you are contracting with Mozy, Inc., 505 1st Ave S, Suite 600, Seattle, WA 98104, USA. For residents of all other countries, you are contracting with Mozy International Limited, IDA Industrial Estate, Ovens, Co. Cork, Ireland.

2. ACCOUNTS AND FEES

You must register with Mozy to use the Services, and you agree to keep your registration information accurate, complete and up-to-date as long as you continue to use the Services. Mozy currently offers a free personal account with limited storage capacity (“Free Account”) and various fee-bearing accounts offering larger storage capacities and other feature enhancements (“Paid Accounts”). If you sign-up for a Paid Account, you agree to pay the fixed subscription and variable usage-based fees, if any, for the account type you have selected and agree to any applicable restrictions, including quotas on the amount of storage you are allowed to use. If you exceed any quota allocated to your account, you agree that Mozy may restrict your ability to backup further data until you reduce your storage usage or sign-up to another type of account with a higher quota or no quota at all. If you use a credit card for payment, you authorise Mozy to automatically renew your subscription and charge the then-current renewal fees to the credit card associated with your account unless you notify Mozy before expiration of your current subscription that you do not want to renew.

3. PASSWORDS AND SECURITY

You are responsible for keeping your passwords secure, and you agree not to disclose your passwords to any third party. You are solely responsible for any activity that occurs under your user names and accounts, including any sub-accounts. If you lose your passwords or the encryption keys for your accounts, you may not be able to access your backup data. You must notify Mozy immediately of any unauthorised use of your accounts or any other security breach related to the Service. If Mozy determines that a security breach has occurred or is likely to occur, Mozy may suspend your accounts and require you to change your user names and passwords.

4. PRIVACY

You agree that Mozy’s collection, use and disclosure of your personal information, backup data or any other data will be governed by Mozy’s Privacy Policy and the laws generally applicable to Mozy as a provider of the Services, including breach notification laws. Unless specifically agreed otherwise in writing by Mozy, you agree to be solely responsible for compliance with laws applicable to any such information or data and your use of the Services, including any laws that apply to your business or industry.

5. USE OF SERVICES AND SOFTWARE

Subject to these Terms, Mozy grants you a limited, non-exclusive, non-transferable and revocable licence to access the Site and use the Services and Software. You may install and use the Software in executable form only on the number and type of devices that are specified in the then-current documentation for your account type as described on the Site or as specified in other transaction documentation provided by Mozy or an authorised reseller. You acknowledge that certain third party code may be provided with the Software and that the licence terms accompanying that code will govern its use.

You acknowledge that Mozy or third parties own all right, title and interest in and to the Products, including all intellectual property rights. Except for the licence granted in these Terms, Mozy and its licensers retain all rights in the Products, and no implied licences are granted to you.

You specifically agree that you will not, nor will you permit another person to:

  • sub-licence, lease, rent, loan, transfer, or distribute any portion of the Products;
  • modify, adapt, translate, or create derivative works from the Products;
  • decompile, reverse engineer, disassemble, or otherwise attempt to derive source code from the Products; or
  • remove, obscure or alter any trademark, copyright, or other proprietary rights notices displayed in the Software or on the Site.

6. SHARED CONTENT AND DATA SHUTTLE SERVICE

The Products may enable you to share or synchronise your files between your own devices or with devices owned or controlled by third parties. If you choose to use any such features, you agree that your use of these features, including any content submitted by you, shall be at your sole risk and responsibility. You also agree that you have obtained all necessary rights and licensees to any such content. You hereby grant Mozy a worldwide, royalty-free, nonexclusive licence to use any such content as part of the Services, and in relation to the Products, without any compensation to you or others. Mozy reserves the right to refuse to post or remove any such content at any time at its sole discretion without notice or liability.

If you have a large amount of data to backup when you first sign-up for the Services, you may choose to seed your initial backup using the Mozy Data Shuttle service. If you use this service, you agree that you bear all risk of loss and damage to your backup data while it is in transit, and you may not be able to access and retrieve your backup data until you have performed a successful online backup after completion of the Data Shuttle transfer.

7. COMPLIANCE WITH LAWS AND ACCEPTABLE USE

You are solely responsible for your conduct related to the Service and any data you store or share on the Service. You specifically agree that you will not use the Products to:

  • violate any laws or regulations;
  • infringe the intellectual property or other rights of third parties;
  • transmit any material that is obscene or objectionable or that contains viruses or other harmful computer code or files such as Trojan horses, worms, or time bombs.

8. INTELLECTUAL PROPERTY PROTECTION

Mozy respects the intellectual property of others and requires that users of the Service do the same. When you use the Products, you may not upload, store, share, display, post, email, transmit or otherwise make available any material that infringes any copyright, patent, trademark, trade secret or other proprietary rights of any person or entity. If you commit repeated violations, Mozy may terminate your accounts.

9. USER INDEMNITY

You agree to defend, indemnify and hold Mozy, its suppliers, resellers, partners and their respective affiliates harmless from and against any claims, liabilities, damages, losses and expenses, including reasonable legal fees and costs, in connection with:

  • your use of the Products;
  • your breach of these Terms;
  • your infringement of any third party right, including any intellectual property right; or
  • any claim that use of your data caused damage to a third party.

This indemnity obligation will survive the termination or expiration of your account and these Terms.

10. CHANGES TO THE SERVICE AND TERMS

Mozy reserves the right at any time to modify, suspend, or discontinue providing the Service, in whole or in part. In the event Mozy anticipates that any such action will significantly affect your use of the Service in a negative way, Mozy will endeavour to provide you with advance notice by e-mail, an in-client message or by posting relevant information on the Site.

Mozy reserves the right to modify these Terms at any time, and each such modification will be effective upon posting on the Site. All material modifications will apply prospectively only. Your continued use of any Products following any such modification constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by these Terms, you must stop using the Products immediately.

11. TERM AND TERMINATION

These Terms, and any posted revisions, remain in effect as long as you continue to maintain an account or use the Services. You may terminate your account at any time, for any reason, by following the instructions on the Site and discontinuing use of the Products.

If you have a Free Account, Mozy may terminate your account and these Terms immediately and without notice if your computer fails to access the Services to perform a backup for more than thirty (30) days or you fail to comply with these Terms. If you have a Paid Account, Mozy may terminate your account and these Terms immediately and without notice if you fail to renew your subscription, fail to pay any fees or invoices when due or otherwise fail to comply with these Terms.

On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Software and the Services, and you will no longer be able to access and restore your backup data. Also, you specifically agree that Mozy has no obligation to provide you or anyone else with a copy of your backup data and may automatically purge your backup data from Mozy systems.

10.4 You acknowledge that providing notice of any modification, suspension or discontinuation of the Services or of any modification of the Terms in accordance with clause 10.3 will not be reasonably practicable for Mozy in the following circumstances:

  • Misuse by the user;
  • unforeseen critical maintenance work;
  • breach of data- or cyber-security (or material concerns in relation to the same);
  • suspected or alleged infringement of intellectual property rights in respect of the Services;
  • unforeseen changes in laws or regulations; or
  • widespread network or power failures affecting Mozy facilities.

10.5 Any modification to the Terms will be posted to the Site. Notice of change of such Terms shall be sent to you upon posting. The new Terms shall be effective thirty (30) days after such notice, All material modifications to the Terms will apply prospectively only. Your continued use of any Services following notification by Mozy of any modification to the Terms constitutes your agreement to be bound by the modified Terms. To stay informed of any changes, please review the most current version of these Terms posted on the Site. If you do not agree to be bound by the Terms (or any modified version thereof), you must stop using the Services immediately and request termination of the Agreement (and your account) pursuant to clause 11.3.

11. TERM AND TERMINATION

11.1 These Terms, and any posted revisions, remain in effect as long as you continue to maintain an account or use the Services.

11.2 You are entitled to terminate this Agreement (and your account) immediately and without penalty at any time within fourteen (14) days of your entry into this Agreement (the "Rescission Notice Period") by sending Mozy an e-mail requesting the same to the following email address: Emea.support@mozy.com. If you exercise your right to terminate in accordance with this clause 11.2, all payments already made by you shall be refunded to you within fourteen (14) days of Mozy’s receipt of your e-mail.

11.3 After expiry of the Rescission Notice Period you may request to terminate this Agreement (and your account) immediately at any time, for any reason, by following the instructions on the Site and discontinuing your use of the Services. If you exercise your right to terminate in accordance with this clause 11.3, Mozy shall refund any payments already made by you pro rata to the number of full months remaining in your subscription package within fourteen (14) days of Mozy’s receipt of your request to terminate.

11.4 Mozy may terminate this Agreement (and your account) on ten (10) days' written notice in any of following circumstances:

  • In respect of a Free Account, you do not access the Services in order to perform a backup for more than ninety (90) days
  • in respect of a Paid Account:
    • you fail to renew your subscription; or
    • we are unable to collect a payment that is due in respect of your account after three attempts.

11.5 Mozy may terminate this Agreement (and your account, regardless of whether it is a Paid or Free Account) immediately on written notice in any of the following circumstances:

  • you fail to comply with these Terms and such failure persists for more than thirty (30) days from receipt of a request from Mozy to rectify such non-compliance;
  • you commit a Misuse of the Services (as defined in clause 7); or
  • upon discontinuation of the Services by Mozy in accordance with clause 10.

11.5 Where Mozy terminates the Agreement (and your account) in accordance with this clause 11.5, Mozy shall refund any payments already made by you pro rata to the number of full months remaining in your subscription package within fourteen (14) days of notifying you of such termination. Any refunds provided to you pursuant to this clause 11.5 shall be without prejudice to any other rights or remedies that Mozy may have under this Agreement or at law in respect of any breach by you of these Terms

11.6 On termination or expiration of your account or these Terms, you will no longer have the right to continue to use the Services, and you will no longer be able to access and restore your backup data. You acknowledge that Mozy has no obligation to provide you or anyone else with a copy of your backup data after termination or expiry and that Mozy will automatically purge your backup data from Mozy's systems as soon as reasonably practicable following such termination or expiry.

11.7 For the purposes of calculating pro-rata refunds in accordance with this clause 11, subscription packages will be deemed not to include any 'free months' offered as part of the package. Therefore, if you have paid for a 2-year plan with 3 months free, the amount of full months remaining in the package will be calculated by deducting the number of months during which you have been using the Services from a total of 21 months (as opposed to the full 24 months).

For example, if you sign up to the 2-year plan with 125GB of data (and three months free) for £7.99 per month, and your account is terminated in the 2nd month of the plan, then you will have 19 full months remaining (out of a total of 21 months). The refund would then be calculated as follows:

19 x £7.99 = £151.81

12. EXPORT

You acknowledge that use of the Services may be subject to the export and import laws of the United States and other countries. You agree to comply with all export and import laws and regulations. In particular, you acknowledge that the Services may not be exported or re-exported to any U.S. embargoed countries or to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Department of Commerce Denied Persons List or Entity List. By using the Services, you represent and warrant that you are not located in any such country or on any such list. You also agree that you will not use the Services for any purposes prohibited by U.S. law, including the development, design, manufacture or production of missiles, nuclear, chemical or biological weapons.

COUNTRY TERMS

In addition to the foregoing, your relationship with Mozy will be governed by the following country-specific terms, which will vary depending on your location or country of residence.

MOZY COUNTRY TERMS FOR:

THE UNITED KINGDOM OF GREAT BRITAIN AND NORTHERN IRELAND; AND

THE REPUBLIC OF IRELAND

(referred to in the Terms as "Country Terms")

13. WARRANTIES, INDEMNITY AND DISCLAIMERS:

13.1 Nothing in these terms and conditions excludes, restricts or affects your statutory rights.

13.2 The Services will be provided to you with reasonable skill and care. In this context, you specifically acknowledge and accept that the Service, as with other internet applications, is not capable of being 100% secure and Mozy does not guarantee the prevention or detection of any unauthorised attempts to access your data through the Services. Nonetheless, Mozy shall implement appropriate security measures in order, so far as is reasonably practicable, to: (i) preserve the security of your data; and (ii) protect against any loss, misuse or alteration of such data whilst it is hosted on Mozy's systems. You acknowledge that the level of security of the Services is commensurate with a consumer back-up service for home use and that the Services are not intended for the back-up of high-value data. When you install Mozy software, you are responsible for selecting the type of encryption key you want to use for your backups. You can choose either the Mozy default encryption key or a custom encryption key.

13.4 Mozy cannot be held responsible for any loss or corruption of data or any unauthorised access to such data arising from the use by you of third party systems and services to transmit the data to or retrieve data from Mozy. In addition it is entirely your responsibility to protect your computer from computer viruses by installing and updating adequate anti-virus software.

13.5 Without prejudice to any other provision of this Agreement, if a failure in respect of the Services materially or permanently prevents you from accessing or retrieving any data that you have stored through the Services, then Mozy shall, at our option either: (a) resolve the issue; or (b) refund to you that proportion of the price you paid for the Services which is reasonably attributable to the data in question, taking into account its size relative to the total volume of data stored by you during the term of this Agreement.

13.5 Other than those terms and conditions that are mandatory under applicable laws and regulations or that are expressly set out in these Terms, Mozy excludes all express or implied terms and conditions, conditions, warranties, representations or endorsements whatsoever with regard to the Services including without limitation those as to satisfactory quality, fitness for a particular purpose, title, and non-infringement of proprietary rights and any warranties or other terms regarding the availability, security, reliability, timeliness, and performance of the Services.

14. LIMITATION OF LIABILITY

14.1 Except as required under applicable laws and regulations, Mozy or its suppliers, resellers, partners or their respective affiliates shall have no liability to you in respect of any actual or expected:

    14.1.1 loss of profits;
    14.1.2 loss of revenue, loss of goodwill, loss of opportunity, or loss of business;
    14.1.3 increased costs or expenses;
    14.1.4 wasted expenditure including pre-contract expenditure; or
    special, indirect or consequential loss of any type including but not limited to any loss arising out of any liability of you to any other person, even if such loss was reasonably foreseeable or Mozy had been advised of the possibility of you incurring it.

14.2 For the avoidance of doubt, the loss referred to in sub-clauses 14.1.1 to 14.1.4 includes both direct and indirect loss.

14.3 In respect of all losses not listed in clause 14.1 and subject to clause 14.5, the total aggregate liability of Mozy, and its suppliers, resellers, partners and their respective affiliates arising from or related to this Agreement shall not exceed the greater of GBP£1,000 or the fees paid by you to Mozy over the two years preceding the event causing you loss

Mozy shall not be liable for any loss or damage resulting from any breach of these Terms by you or by someone using your account. Mozy may require you to reimburse Mozy for any reasonable and foreseeable losses, costs, expenses, damages or other liability that Mozy incurs as a result of the breach of these Terms either by you or by someone using your account.

14.5 Nothing in this clause 14 shall exclude or limit Mozy's liability for fraudulent representations made by it or for death or personal injury caused by Mozy's negligence or wilful misconduct.

15. MISCELLANEOUS PROVISIONS

15.1 The United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.

15.2 The failure or delay by Mozy to exercise or enforce any right or remedy of this Agreement does not constitute a waiver of that, or any other, right or remedy.

15.3 If for any reason a court of competent jurisdiction finds any provision or portion of this Agreement to be invalid or unenforceable, that provision or portion will be construed in a manner consistent with applicable law to reflect, as nearly as possible, the original intentions of the parties, and the remaining provisions or portions will remain in full force and effect.

15.4 This Agreement constitutes the entire agreement between you and Mozy and supersedes and replaces any and all prior or contemporaneous understandings or agreements whether written or oral between you and Mozy in relation to the Services and the subject matter hereof.

15.5 You agree that the Contracts (Rights of Third Parties) Act 1999 does not apply to this Agreement and that, except as otherwise expressly provided in these Terms, there will be no third-party beneficiaries to this Agreement.

15.6 This Agreement will be governed by and construed in accordance with the laws of England, and you agree to the exclusive jurisdiction of the courts of England and Wales. Nothing in this clause 15.6 will prohibit Mozy from instituting an action in any court of competent jurisdiction to obtain injunctive relief or protect or enforce its intellectual property rights.

15.7 You may not assign or transfer any of your rights or obligations under this Agreement to a third party without the prior written consent of Mozy. Mozy may freely assign this Agreement. Any attempted assignment or transfer in violation of the foregoing will be void from the beginning.

Last Updated : 17 November 2016

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