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VAULTDROP, LLC (“VAULTDROP”) SERVICES AGREEMENT
This Agreement includes and incorporates the VaultDrop Terms and Conditions and Privacy Policy published on its website and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any other agreement, purchase order, or similar form unless agreed by the parties after the date hereof.
RECITALS
1. VAULTDROP SERVICES
1.1 Subject to the terms of this Agreement, VaultDrop will use commercially reasonable efforts to provide and make available cloud storage services, “Services,” to Client’s current customers, “Customers.” who shall be “Invited Users.”
1.2 VaultDrop shall provide Client with an automatic means to invite users from among its Customers, thereby making them Invited Users, and subsequently un-invite, or “Off-board” Customers as they cease to be Client’s customers, with those Customers thereby becoming “Former Customers” or “Uninvited Users.”
1.3 VaultDrop shall make its “Pro” tier of unlimited cloud storage with syncing service available to Invited Users.
1.4 When Off-boarded, Uninvited Users will be provided, at no additional fee, with continued access to their cloud storage content and ability to upload new content via VaultDrop’s “Basic” tier of unlimited cloud storage without syncing service. VaultDrop will provide this content access subject to its own goodwill, but may terminate such access with 90 days of notice.
1.5 Subject to the terms hereof, VaultDrop will provide Client and Invited Users with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.6 VaultDrop reserves the right to refuse registration of, or cancel services of any Invited Users or Uninvited Users who are in breach of any terms of service, privacy or other policies, as VaultDrop deems appropriate.
1.7 Uninvited Users may also be presented with an “Offer” to continue using VaultDrop’s “Pro” tier of services with VaultDrop and become a direct customer of VaultDrop. If an Uninvited User accepts the Offer, Client may be provided with a commission, “Commission,” as set forth in Exhibit A.
2. RESTRICTIONS AND RESPONSIBILITIES
2.1 Client will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by VaultDrop or authorized within the Services); use the Services or any Software for timesharing; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Client for use on Client premises or devices, VaultDrop hereby grants Client a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services, per the terms and conditions contained in the published VaultDrop Terms of Services.
2.2 Trademarks
a) Client acknowledges VaultDrop’s ownership and exclusive rights in its Trademarks and, further, that the Trademarks are unique and original to VaultDrop. VaultDrop shall retain all right, title and interest in the Trademarks as well as any modifications made to the Trademarks. Client agrees that any use of the Trademarks inures to the benefit of VaultDrop and that the rights in the Trademarks cannot be acquired.
b) Throughout the Term of this Agreement, Client shall not display the trademarks, logos, branding or business names of competitors to VaultDrop; and furthermore, shall not display marks intended to, or resulting in the effect of, diluting, tarnishing, harming or competing with VaultDrop.
2.3 The parties agree to comply all applicable export laws and regulations, specifically: Client may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, in violation of any United States or foreign agency or authority. As defined in FAR section 2.101, software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Client represents, covenants, and warrants that Client will use the Services only in compliance with VaultDrop’s published terms of service and privacy policy in effect and all applicable laws and regulations. Client hereby agrees to indemnify and hold harmless VaultDrop 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 and from terms of services or privacy policy. VaultDrop has no obligation to monitor use of the Services, however, VaultDrop may suspend or prohibit use that constitutes (or is alleged to be) a violation of the foregoing.
2.5 Client shall be responsible for its part in maintaining the security of Client’s account passwords (including but not limited to administrative and user passwords) and files, and for all uses of Client account.
3. CONFIDENTIALITY; PROPRIETARY RIGHTS
3.1 The terms and conditions of this Agreement are private and confidential between the parties and shall not be disclosed to anyone else without the prior written approval by VaultDrop.
3.2 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). VaultDrop Proprietary Information includes non-public information regarding features, functionality and performance of the Service. Client Proprietary Information includes non-public data provided by Client to VaultDrop to enable the provision of the Services (“Client Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, or (b) was in the possession of, or known by, the Receiving Party prior to receipt from the Disclosing Party, or (c) rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.3 Notice of disclosures made contrary to Section 3.1, pursuant to 3.2(e) or made inadvertently must be made as soon as practicable and not later than twenty-four hours after the discovery of disclosure or as ordered by law. Disclosures shall be made only to the extent necessary. Finally, the Parties agree to reasonable cooperation to secure any protective orders necessary to preserve confidential information and proprietary rights.
3.4 VaultDrop shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, VaultDrop shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Client and Customer Data and data derived therefrom), and VaultDrop will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other VaultDrop offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4. PAYMENT OF FEES
4.1 Client will pay VaultDrop the fees described in Exhibit A for the Services in accordance with the terms therein (the “Fees”). If Client’s use of the Services exceeds the Service Capacity set forth on Exhibit A or otherwise requires the payment of additional fees (per the terms of this Agreement), Client shall be billed for such usage and Client agrees to pay the additional fees in the manner provided herein or has the right to terminated the agreement. VaultDrop reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Client (which may be sent by email). If Client believes that VaultDrop has billed Client incorrectly, Client must contact VaultDrop no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to VaultDrop’s customer support department.
4.2 VaultDrop may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by VaultDrop thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services.
5. TERM AND TERMINATION
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified Exhibit A, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice. Client will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 All sections of this 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.
5.4 VaultDrop will continue to provide “Basic” cloud storage services to Client’s Invited and Univited Users as of the time of the termination. VaultDrop will also continue to pay the Commission to Client as outlined in section 1.7 and Exhibit A.
6. WARRANTY AND DISCLAIMER
VaultDrop shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VaultDrop or by third-party providers, or because of other causes beyond VaultDrop’s reasonable control. Nevertheless VaultDrop shall provide advance notice in writing or by e-mail of any scheduled service disruption. However, VaultDrop 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND VAULTDROP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT. CLIENT SERVICES FEES WILL BE SUSPENDED FOR ANY PERIOD OF TIME THAT SERVICES ARE INTERRUPTED.
7. INDEMNITY
The following indemnity obligations shall survive the termination of this Agreement:
i. VaultDrop shall indemnify, defend and hold Client harmless from and against any liabilities, losses, investigations, inquiries, claims, suits, damages, costs and expenses (including, without limitation, reasonable attorneys’ fees and expenses) (collectively, the “Claims”) resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided VaultDrop is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; VaultDrop will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by VaultDrop, (ii) made in whole or in part in accordance with Client specifications, (iii) that are modified after delivery by VaultDrop, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Client continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Client’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by VaultDrop to be infringing, VaultDrop may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Client a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Client’s rights hereunder and provide Client a refund of any prepaid, unused fees for the Service.
ii. VaultDrop shall indemnify, defend and hold Client harmless for any and all Claims related to the use of the VaultDrop Services including an Invited User’s lost data according to the provisions of VaultDrop’s published Terms of Service. Any guarantees offered or otherwise made available to VaultDrop Proprietary End Users, users acquired by VaultDrop through any source other than Client, or to any VaultDrop user, client, or client that is not a Client Invited User or a Client Uninvited User, shall not apply to or otherwise be made available to Client’s Invited Users or Uninvited Users.
iii. VaultDrop shall indemnify, defend and hold Client harmless from any and all Claims related to its customers use of VaultDrop Services.
8. LIMITATION OF LIABILITY
NOTWITHSTANDING ANYTHING TO THE CONTRARY, VAULTDROP 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 FOR: (A) COST OF PROCUREMENT OF SUBSTITUTE GOODS, SERVICES OR TECHNOLOGY OR LOSS OF BUSINESS OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VAULTDROP’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CLIENT TO VAULTDROP FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VAULTDROP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMIITATION OF LIABILITY PROVISION SHALL NOT APPLY TO VAULTDROP’S OBLIGATIONS TO INDEMNIFY, DEFEND AND HOLD HARMLESS AS SET FORTH ABOVE IN SECTION 7.
VaultDrop shall add this language to its Privacy Policy and Terms of Service:
“If you were provided VaultDrop service by a third-party that is paying for your use of the account (“Payer”), such as a company that provided your VaultDrop account to you in connection with offering other services (e.g., a self storage company), then by using VaultDrop services you hereby waive all claims against such Payer related to your use, or anyone you explicitly or implicitly authorized’s use, of VaultDrop services, and further agree to indemnify, defend and hold harmless the Payer or company for any type of damage or loss related to your use, or anyone you explicitly or implicitly authorized’s use, of VaultDrop services.”
9. MEDIATION
Neither party may file a lawsuit until the completion of the mediation described in this Section. A party shall file a mediation demand with a service similar to JAMS of Southern California, with the non-binding mediation to take place in Los Angeles County, California. The parties will work in good faith to select a mediator who is knowledgeable and experienced in the subject matter of this Agreement. If the parties cannot agree upon a mediator within twenty (20) days of the filing of a mediation demand, then the mediation service provider shall appoint a mediator within (10) days of being informed by one of the parties of the inability to select a mediator. The mediation shall be conducted within forty-five (45) days of the date of the filing of the mediation demand from either party. All negotiations connected with the dispute, including negotiations with a mediator, shall be conducted in confidence and without prejudice to the rights of the parties in any future legal proceedings.
10. Insurance/Additional Insured. VaultDrop shall, at its sole expense, maintain general liability insurance (“GL”) of not less than One Million Dollars ($1,000,000) each occurrence and Two Million Dollars ($2,000,000) in the aggregate, and shall name Westport Properties, Inc., as an additional insured to such GL policy. VaultDrop shall also maintain professional liability coverage of not less than One Million Dollars ($1,000,000). VaultDrop shall ensure that all such coverages carried provide a waiver of subrogation in favor of Westport Properties, Inc., and is primary and non-contributory with respect to any other policies carried by Westport Properties, Inc. The insurance specified above shall be placed with insurance companies rated by AM Best Company as having a financial strength rating of at least A- or better and a financial size category of “VII” or greater or otherwise be satisfactory to Manager.
11. 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 Client or VaultDrop except with VaultDrop’s or Client’s prior written consent. 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. All waivers and modifications to this Agreement 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 Client does not have any authority of any kind to bind VaultDrop in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled 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.
EXHIBIT A
Service Offering and Pricing
VaultDrop will use commercially reasonable efforts to provide Client the Services described hereto as Exhibit A and Client shall pay VaultDrop the Fee in accordance with the terms herein.
Services and Fees
Services and Service Capacity: Service shall consist of VaultDrop’s “Pro” unlimited cloud storage with syncing made available per Invited User, and VaultDrop’s “Basic” unlimited cloud storage without syncing service made available per Uninvited user.
Service Fees: Service fees due to VaultDrop from Client shall be priced per self-storage facility location and be as follows:
If VaultDrop Services become unavailable for any period of time, VaultDrop shall provide a pro-rated discount for the period of time during which its Services were unavailable.
Automatic Invitation System: The fees in this agreement include access to an automated system implemented via an API with SiteLink to facilitate inviting, uninviting and otherwise managing services for Client and its Customers.
Initial Service Term: 30 days; to automatically renew each month unless canceled.
Satisfaction Guarantee: If Client launces VaultDrop at all of its locations, Client may pay any or all of its first months’ invoice at Client’s discretion, based on how Client believes VaultDrop has performed for its business.
Implementation
Training: VaultDrop shall provide training videos and reasonable support to Client’s staff.
Marketing
Physical Marketing: VaultDrop will provide per facility: (1) indoor poster, and a reasonable supply of customer brochures to Client if requested.
Digital Marketing: VaultDrop will provide Client a customized landing page, along with digital cloud graphic that Client can use on their website or other marketing. VaultDrop will reasonably assist Client with applying digital “FREE CLOUD STORAGE” banners to its online advertising.
For Uninvited Users
Offer: VaultDrop may provide Uninvited Users with an offer to receive continued “Pro” service for $4.99 monthly, or other offers as VaultDrop may decide.
Commission: VaultDrop will pay Client 30% commission per month for each Uninvited User that accepts the Offer, for as long as the Uninvited User continues to pay for their Offer.
EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Client requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond VaultDrop’s control will also be excluded from any such calculation. Client’s sole and exclusive remedy, and VaultDrop’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one (1) hour, VaultDrop will credit Client 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as VaultDrop recognizes that downtime is taking place, and continues until the availability of the Services is restored. Such credits may not be redeemed for cash. VaultDrop will only apply a credit to the month in which the incident occurred. VaultDrop’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of VaultDrop to provide adequate service levels under this Agreement.
EXHIBIT C
Support Terms
VaultDrop will provide Technical Support to Client and Customers via both telephone and electronic mail on a timely basis. Reseller may direct its Customers to contact VaultDrop directly for support.
1. Compensation Program
Compensation of Sales Manager of Vault Drop, LLC consists of a commission-based structure. The Program is designed to reward productiveness and proficiency in the attainment of sales objectives within the self-storage or multi-family vertical.
2. Compensation
The Sales Consultant positions compensation is 100% commission based. The compensation is earned on the basis of the number of locations that the Sales Consultant has on-boarded.
Compensation Calculations:
The compensation calculation is as follows:
$100 per location that is signed up
60% of sales collected for a location in the first year after signup
10% of sales collected for a location for sales collected after the first year
Sales Bonuses:
Sign up 3 locations in one month and receive a $500 bonus
Sign up 5 locations in one month and receive a $1,000 bonus
Sign up 10 locations in one month and receive a $3,000 bonus
3. Compensation Payments
The compensation payment will be paid within thirty (30) days after the month. All earned compensations will be computed using financial data determined in accordance with the Company’s standard practices and generally accepted accounting principles.
4. Program Administration and General Provisions
5. Objective
Build Relationships, Gain a Deep Market Knowledge, Gain Customers Confidence, Negotiate and Close Deals.
6. Duties and Responsibilities
The duties and responsibilities are as follows:
7. Termination
Either party can cancel this agreement with a 2 week notice. If the Sales Consultant is inactive for more than 3 months, VaultDrop reserves the right to terminate the contract.
8. Confidentiality
All information contained within this document is confidential and shall not be shared with any employees of the company or third parties except as specifically approved by the Management Committee.
Please select a time and date that you would like a VaultDrop sales rep. to contact you.
In OAuth2, the authorization code passes through the web browser, but Private ID sends authenticated user information and the secure access token by an out-of-band channel directly to a partner endpoint. In bypassing the user’s web browser and encouraging partner sites to keep private information on the back end-web server and database, Private ID rules out an entire class of vulnerabilities.
OAuth2 requires two calls in sequence for this type of delegated authentication sequence: first acquiring an authorization code, and then acquiring a secure access token. This is done to avoid sending the token through the web browser. Since Private ID has eliminated that vulnerability already, only one step is needed.
OAuth2 relies heavily on TLS for assurance of security, arguably leaving it open to malicious certificates and man-in-the-middle attacks. Private ID also uses TLS, but further requires the partner to sign each request cryptographically to provide a higher level of protection.
Looking for more information or want to give VaultDrop a try? Submit your information
below and a member of our sales team will follow up with you shortly.
Feel free to give us a call 888-677-6313
If the email address you provided is associated with a current self-storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact your storage provider, or email help@vaultdrop.com
[contact-form-7 id=”3086″ title=”B2B-Landing-Page”]
If the email address you provided is associated with a current self-storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact your self-storage company, or email help@vaultdrop.com
Enter the email address you provided to your self-storage company.
If the email address you provided is associated with a current self-storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Devon Self Storage, or email help@vaultdrop.com
VAULTDROP, LLC (“VaultDrop”) SERVICES AGREEMENT
[contact-form-7 id=”1627″ title=”B2B-Build-Your-Brand”]
Set-up training time-frame with your managers
We ship and install POP materials at your locations
Contact our free support line at any time
Free staff and customer support
Free installation
Free guarantee against data loss
Reproducible marketing materials for all of your locations
Unlimited technical support for your staff and customers
No capital improvement costs
Fully automated
Free training
Immediate financial benefits
Applies to all your properties
VAULTDROP, LLC (“VaultDrop”) SERVICES AGREEMENT
READ THIS VAULTDROP, LLC (“VaultDrop”) SERVICE AGREEMENT (THIS “Agreement”) CAREFULLY BEFORE CONTINUING REGISTRATION.
BY CREATING AN ACCOUNT OR OTHERWISE ACCEPTING THE TERMS OF THIS AGREEMENT, ONLINE, IN A SEPARATE WRITTEN FORM, OR BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IF YOU ENTER INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU REPRESENT THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THE TERMS AND CONDITIONS OF THIS AGREEMENT AND, IN SUCH EVENT, “YOU,” “YOUR,” “CUSTOMER,” AND “COMPANY,” AS USED IN THIS AGREEMENT SHALL REFER TO SUCH ENTITY.
IF YOU DO NOT AGREE TO ALL THE TERMS AND CONDITIONS IN THIS AGREEMENT, YOU MUST NOT CREATE AN ACCOUNT AND MAY NOT USE VAULTDROP SERVICES.
This Agreement includes and incorporates the VaultDrop Terms and Conditions and Privacy Policy published on its website and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any other agreement, purchase order, or similar form unless agreed by the parties after the date hereof.
RECITALS
1.1 Subject to the terms of this Agreement, VaultDrop will use commercially reasonable efforts to provide and make available cloud storage services, “Services,” to Customer’s current customers, “Clients.” who shall be “Invited Users,” as outlined in Exhibit A. One occupied unit of a storage facility shall represent one Invited User. VaultDrop reserves the right to refuse registration of, or cancel services of any Invited Users who are in breach of any terms of service, privacy or other policies, as VaultDrop deems appropriate.
1.2 VaultDrop shall provide Customer with an “Automated Invitation System,” that will invite, or “Onboard” Clients, thereby making them Invited Users, and subsequently un-invite, or “Off-board” Clients as they cease to be Customer’s current customers, with those Clients thereby becoming “Former Clients” and “Uninvited Users.” The Automated Invitation System may interface with Customer MIS, such as Facility Management Software and/or other IT systems to assist in automatically carrying out these tasks.
1.3 Subject to the terms hereof, VaultDrop will provide Customer and Invited Users with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.4 When Off-boarded, Uninvited Users may be provided, at no additional fee, with continued access to their cloud storage content. VaultDrop will provide this content access subject to its own goodwill, with the intention of providing this indefinitely, but may terminate such access with 90 days of notice.
1.5 Uninvited Users may also be presented with an “Offer” to continue services with VaultDrop and become a direct customer of VaultDrop. If an Uninvited User accepts the Offer, Customer may be provided with a commission, “Comission,” as set forth in Exhibit A.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by VaultDrop or authorized within the Services); use the Services or any Software for timesharing; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, VaultDrop hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services, per the terms and conditions contained in the published VaultDrop Terms of Services.
2.3 The parties agree to comply all applicable export laws and regulations, specifically: Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, in violation of any United States or foreign agency or authority. As defined in FAR section 2.101, software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer and its Invited Users will use the Services only in compliance with VaultDrop’s published terms of service and privacy policy in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless VaultDrop 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 and from terms of services or privacy policy. VaultDrop has no obligation to monitor use of the Services, however, VaultDrop may suspend or prohibit use that constitutes (or is alleged to be) a violation of the foregoing.
2.5 Customer shall be responsible for maintaining ancillary services needed for it and its Invited Users to access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers, management information systems, other IT systems, and the like (collectively, “Equipment”).
2.6 Customer shall be responsible for its part in maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.
3.1 The terms and conditions of this Agreement are private and confidential between the parties and shall not be disclosed to anyone else without the prior written approval by VaultDrop.
3.2 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). VaultDrop Proprietary Information includes non-public information regarding features, functionality and performance of the Service. Customer Proprietary Information includes non-public data provided by Customer to VaultDrop to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, or (b) was in the possession of, or known by, the Receiving Party prior to receipt from the Disclosing Party, or (c) rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.3 Notice of disclosures made contrary to Section 3.1, pursuant to 3.2(e) or made inadvertently must be made as soon as practicable and not later than twenty-four hours after the discovery of disclosure or as ordered by law. Disclosures shall be made only to the extent necessary. Finally, the Parties agree to reasonable cooperation to secure any protective orders necessary to preserve confidential information and proprietary rights.
3.4 VaultDrop shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, VaultDrop shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and VaultDrop will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other VaultDrop offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1 Customer will pay VaultDrop the fees described in Exhibit A for the Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on Exhibit A or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. VaultDrop reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that VaultDrop has billed Customer incorrectly, Customer must contact VaultDrop no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to VaultDrop’s customer support department.
4.2 VaultDrop may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by VaultDrop thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on VaultDrop’s net income.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified Exhibit A, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 All sections of this 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.
VaultDrop shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VaultDrop or by third-party providers, or because of other causes beyond VaultDrop’s reasonable control. Nevertheless VaultDrop shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, VaultDrop 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND VAULTDROP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
VaultDrop shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided VaultDrop is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; VaultDrop will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by VaultDrop, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by VaultDrop, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by VaultDrop to be infringing, VaultDrop may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
VaultDrop will indemnify Customer for an Invited User’s lost data according to the provisions of VaultDrop’s published Terms of Service. Any guarantees offered or otherwise made available to VaultDrop Proprietary End Users, users acquired by VaultDrop through any source other than Customer, or to any VaultDrop user, customer, or client that is not a Customer Invited User or a Customer Uninvited User, shall not apply to or otherwise be made available to Customer’s Invited Users or Uninvited Users.
Throughout the Term of the Agreement, VaultDrop shall maintain liability and cyber liability insurance managed by a qualified company, licensed to do business in California. Such policy shall provide protection against claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Services. The amount of coverage shall be for no less than $1 million dollars. The policy shall provide for ten (10) days’ notice in the event of any modification, cancellation or termination.
NOTWITHSTANDING ANYTHING TO THE CONTRARY, VAULTDROP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY 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 OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VAULTDROP’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VAULTDROP FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VAULTDROP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
With the exception of alleged breaches of confidentiality or proprietary rights provisions, or disputes related to security vulnerabilities, neither party may file a lawsuit until the completion of the mediation described in this Section. A party shall file a mediation demand with a service similar to JAMS of Southern California, with the non-binding mediation to take place in Los Angeles County, California. The parties will work in good faith to select a mediator who is knowledgeable and experienced in the subject matter of this Agreement. If the parties cannot agree upon a mediator within twenty (20) days of the filing of a mediation demand, then the mediation service provider shall appoint a mediator within (10) days of being informed by one of the parties of the inability to select a mediator. The mediation shall be conducted within forty-five (45) days of the date of the filing of the mediation demand from either party. All negotiations connected with the dispute, including negotiations with a mediator, shall be conducted in confidence and without prejudice to the rights of the parties in any future legal proceedings.
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 VaultDrop’s prior written consent. VaultDrop may transfer and assign any of its rights and obligations under this Agreement without consent. 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. All waivers and modifications to this Agreement 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 VaultDrop in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled 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.
EXHIBIT A
Service Offering and Pricing
VaultDrop will use commercially reasonable efforts to provide Customer the Services described hereto as Exhibit A and Customer shall pay VaultDrop the Fee in accordance with the terms herein.
Services and Fees
Services and Service Capacity: Service shall consist of unlimited cloud storage made available per occupied unit, with individual file sizes not to exceed 25MB.
Occupied units: Occupied units shall consist of Customer’s Clients as of the date of this agreement.
Service Fees: Service fees due to VaultDrop from Client shall be per self-storage facility based on facility size, per the pricing table below, payable subject to the terms of Section 4.
Facility Size Monthly Price
Up to 400 units $79 USD per month
400 – 600 units $99 USD per month
Over 600 units $129 USD per month
Initial Service Term: The service term shall be one month, with automatic renewal each month until canceled in writing by either party.
Implementation
Implementation: VaultDrop shall interface with Customer’s MIS, such as its Facility Management Software, or other IT systems to provide connectivity to VaultDrop’s Automatic Invitation System, as feasible.
Training: VaultDrop shall provide training videos and support to Customer’s staff.
Marketing
Physical Marketing: VaultDrop will provide (1) outdoor banner, (1) indoor poster, and a reasonable supply of customer brochures to each paying Customer facility.
Digital Marketing: VaultDrop will provide Customer a customized landing page, along with digital cloud graphic that Customer can use on their website or other marketing. VaultDrop will reasonably assist Customer with applying digital “FREE CLOUD STORAGE” banners to its online advertising.
For Uninvited Users
Offer: VaultDrop will provide Uninvited Users with an offer to receive continued Service for $4.99 per month.
Commission: VaultDrop will pay Customer $2.49 per month for each Uninvited User that accepts the Offer, for as long as the Uninvited User continues to pay for their Offer.
EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond VaultDrop’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and VaultDrop’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one (1) hour, VaultDrop will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to VaultDrop) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify VaultDrop in writing within 24 hours from the time of downtime. Failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. VaultDrop will only apply a credit to the month in which the incident occurred. VaultDrop’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of VaultDrop to provide adequate service levels under this Agreement.
EXHIBIT C
Support Terms
VaultDrop will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00am through 5:00pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a request during Support Hours by emailing: help@vaultdrop.com
VaultDrop will also provide Technical Support to Invited Users. Invited Users may initiate a support request by emailing: help@vaultdrop.com
VaultDrop will use commercially reasonable efforts to respond to all requests within one (1) business day.
If the email address you provided is associated with a current Magenta Self Storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Magenta Self Storage, or email help@vaultdrop.com
If the email address you provided is associated with a current Pac-A-Way customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Pac-A-Way, or email help@vaultdrop.com
If the email address you provided is associated with a current Big Tee’s customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Big Tee’s, or email help@vaultdrop.com
If the email address you provided is associated with a current Titan Self Storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Titan Self Storage, or email help@vaultdrop.com
If the email address you provided is associated with a current Armor Storage customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Armor Storage, or email help@vaultdrop.com
If the email address you provided is associated with a current Right Move customer account, you’ll receive an email invitation shortly.
If you don’t get it, please check your spam, contact Right Move, or email help@vaultdrop.com
VAULTDROP, LLC (“VAULTDROP”) SERVICES ORDER FORM AND AGREEMENT
Services(“Service(s)”): Secure cloud storage services made available to Customer’s Invited End Users (“IEU(s)”), where each occupied storage unit represents an Invited End User.
Service Fees: Service fee shall be $0 per Invited End User per month, payable subject to the terms of Section 4.
Service Capacity: Unlimited cloud storage per Invited End User with individual file size not to exceed 25MB
Implementation Services: VaultDrop will use commercially reasonable efforts to provide Customer the Services described in the Service Offering attached as Exhibit A hereto and Customer shall pay VaultDrop the Fee in accordance with the terms herein.
Initial Service Term: The service term shall be one month, with automatic renewal each month until canceled in writing by either party.
VAULTDROP SERVICES AGREEMENT
This VaultDrop Services Agreement (“Agreement”) is entered into as of the date Customer clicks online to accept these Terms and Conditions, (the “Effective Date”) between VaultDrop with a place of business at 2 North Lake Avenue, Suite 10, Pasadena, CA 91101 (“VaultDrop”), and the Customer, the entity indicated in the fields listed alongside the option to accept this form, (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the VaultDrop Terms and Conditions published on its website and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any other purchase order or similar form even if signed by the parties after the date hereof.
TERMS AND CONDITIONS
1.1 Subject to the terms of this Agreement, VaultDrop will use commercially reasonable efforts to provide the Services to Customer’s Invited End Users. VaultDrop reserves the right to refuse registration of, or cancel services of any Invited End Users who are in breach of any terms of service or privacy policies, as VaultDrop deems appropriate.
1.2 VaultDrop shall provide Customer with a mechanism to invite End Users (who shall become Invited End Users) and un-invite End Users (who shall become Uninvited End Users). It is agreed that each occupied unit of a storage facility represents one End User. VaultDrop, in some cases, may provide a mechanism that interfaces with Customer MIS and/or other IT systems to automatically invite and un-invite End Users as they engage and disengage respectively with Customer as an End User of Customer’s Services, or as other criteria may be met.
1.3 Subject to the terms hereof, VaultDrop will provide Customer and Invited End Users with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.4 When Customer un-invites, or causes to be uninvited, one of its Invited End Users, the then Uninvited End User shall be provided, at no additional fee, with fifteen (15) days of continued Service from the date of being un-invited to decide whether to (a) download all content and cease use of VaultDrop services, or (b) continue to utilize VaultDrop services as a VaultDrop Proprietary End User.
1.5 Regardless of whether the Uninvited End User chooses (a) or (b) above, they will have ongoing access to view and download their files from VaultDrop. VaultDrop will provide this capability subject to its own goodwill, with the intention of this availability to last indefinitely, but VaultDrop may terminate it with 90 days notice at any time.
1.6 Subject to VaultDrop approval, when a Customer’s Uninvited End User subscribes to a VaultDrop paid services plan and becomes a VaultDrop Paying End User, a one-time referral fee of $10 per PayingEnd User may be paid to Customer. Alternatively, a residual payment of $1 per month may be paid to Customer for each month that an Uninvited End User remains a VaultDrop Paying End User.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by VaultDrop or authorized within the Services); use the Services or any Software for timesharing; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, VaultDrop hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services, per the terms and conditions contained in the published VaultDrop Terms of Services.
2.3 The parties agree to comply all applicable export laws and regulations, specifically: Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, in violation of any United States or foreign agency or authority. As defined in FAR section 2.101, software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer and its Invited End Users will use the Services only in compliance with VaultDrop’s published terms of service and privacy policy in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless VaultDrop 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 and from terms of services or privacy policy. VaultDrop has no obligation to monitor use of the Services, however, VaultDrop may suspend or prohibit use that constitutes (or is alleged to be) a violation of the foregoing.
2.5 Customer shall be responsible for maintaining ancillary services needed for it and its Invited End Users to access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers, management information systems, other IT systems, and the like (collectively, “Equipment”).
2.6 Customer shall be responsible for its part in maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.
3.1 The terms and conditions of this Agreement are private and confidential between the parties and shall not be disclosed to anyone else without the prior written approval by VaultDrop.
3.2 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). VaultDrop Proprietary Information includes non-public information regarding features, functionality and performance of the Service. Customer Proprietary Information includes non-public data provided by Customer to VaultDrop to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, or (b) was in the possession of, or known by, the Receiving Party prior to receipt from the Disclosing Party, or (c) rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.3 Notice of disclosures made contrary to Section 3.1, pursuant to 3.2(e) or made inadvertently must be made as soon as practicable and not later than twenty four hours after the discovery of disclosure or as ordered by law. Disclosures shall be made only to the extent necessary. Finally, the Parties agree to reasonable cooperation to secure any protective orders necessary to preserve confidential information and proprietary rights.
3.4 VaultDrop shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, VaultDrop shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and VaultDrop will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other VaultDrop offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1 Customer will pay VaultDrop the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. VaultDrop reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon fifteen (15) days prior notice to Customer (which may be sent by email). If Customer believes that VaultDrop has billed Customer incorrectly, Customer must contact VaultDrop no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to VaultDrop’s customer support department.
4.2 VaultDrop may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by VaultDrop thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on VaultDrop’s net income.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 All sections of this 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.
VaultDrop shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VaultDrop or by third-party providers, or because of other causes beyond VaultDrop’s reasonable control. Nevertheless VaultDrop shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, VaultDrop 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND VAULTDROP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
VaultDrop shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided VaultDrop is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; VaultDrop will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by VaultDrop, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by VaultDrop, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by VaultDrop to be infringing, VaultDrop may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
VaultDrop will indemnify Customer for an Invited End User’s lost data according to the provisions of VaultDrop’s published Terms of Service. Any guarantees offered or otherwise made available to VaultDrop Proprietary End Users, users acquired by VaultDrop through any source other than Customer, or to any VaultDrop user, customer, or client that is not a Customer Invited End User or a Customer Uninvited End User, shall not apply to or otherwise be made available to Customer’s Invited End Users or Uninvited End Users.
Throughout the Term of the Agreement, VaultDrop obtains and maintains insurance managed by a qualified company, licensed to do business in California. Such policy shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Services. The amount of coverage shall be for $2 million dollars. The policy shall provide for ten (10) days’ notice in the event of any modification, cancellation or termination.
NOT WITHSTANDING ANYTHING TO THE CONTRARY, VAULTDROP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY 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 OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VAULTDROP’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VAULTDROP FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VAULTDROP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
With the exception of alleged breaches of confidentiality or proprietary rights provisions, or disputes related to security vulnerabilities, neither party may file a lawsuit until the completion of the mediation described in this Section. A party shall file a mediation demand with a service similar to JAMS of Southern California, with the non-binding mediation to take place in Los Angeles County, California. The parties will work in good faith to select a mediator who is knowledgeable and experienced in the subject matter of this Agreement. If the parties cannot agree upon a mediator within twenty (20) days of the filing of a mediation demand, then the mediation service provider shall appoint a mediator within (10) days of being informed by one of the parties of the inability to select a mediator. The mediation shall be conducted within forty-five (45) days of the date of the filing of the mediation demand from either party. All negotiations connected with the dispute, including negotiations with a mediator, shall be conducted in confidence and without prejudice to the rights of the parties in any future legal proceedings.
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 VaultDrop’s prior written consent. VaultDrop may transfer and assign any of its rights and obligations under this Agreement without consent. 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. All waivers and modifications to this Agreement 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 VaultDrop in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled 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.
EXHIBIT A
Service Offering
VaultDrop shall provide the availability of unlimited cloud storage service, with individual file sizes not to exceed 25MB, to Customer’s Invited End Users.
EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond VaultDrop’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and VaultDrop’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one (1) hour, VaultDrop will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to VaultDrop) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify VaultDrop in writing within 24 hours from the time of downtime. Failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. VaultDrop will only apply a credit to the month in which the incident occurred. VaultDrop’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of VaultDrop to provide adequate service levels under this Agreement.
EXHIBIT C
Support Terms
VaultDrop will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00am through 5:00pm Pacific time.
VAULTDROP, LLC (“VAULTDROP”) SERVICES ORDER FORM AND AGREEMENT
Services(“Service(s)”): Secure cloud storage services made available to Customer’s Invited End Users (“IEU(s)”), where each occupied storage unit represents an Invited End User.
Service Fees: Service fee shall be $1 per Invited End User per month, payable subject to the terms of Section 4.
Service Capacity: Unlimited cloud storage per Invited End User with individual file size not to exceed 25MB
Implementation Services: VaultDrop will use commercially reasonable efforts to provide Customer the Services described in the Service Offering attached as Exhibit A hereto and Customer shall pay VaultDrop the Fee in accordance with the terms herein.
Initial Service Term: The service term shall be one month, with automatic renewal each month until canceled in writing by either party.
VAULTDROP SERVICES AGREEMENT
This VaultDrop Services Agreement (“Agreement”) is entered into as of the date Customer clicks online to accept these Terms and Conditions, (the “Effective Date”) between VaultDrop with a place of business at 2 North Lake Avenue, Suite 10, Pasadena, CA 91101 (“VaultDrop”), and the Customer, the entity indicated in the fields listed alongside the option to accept this form, (“Customer”). This Agreement includes and incorporates the above Order Form, as well as the VaultDrop Terms and Conditions published on its website and contains, among other things, warranty disclaimers, liability limitations and use limitations. There shall be no force or effect to any different terms of any other purchase order or similar form even if signed by the parties after the date hereof.
TERMS AND CONDITIONS
1.1 Subject to the terms of this Agreement, VaultDrop will use commercially reasonable efforts to provide the Services to Customer’s Invited End Users. VaultDrop reserves the right to refuse registration of, or cancel services of any Invited End Users who are in breach of any terms of service or privacy policies, as VaultDrop deems appropriate.
1.2 VaultDrop shall provide Customer with a mechanism to invite End Users (who shall become Invited End Users) and un-invite End Users (who shall become Uninvited End Users). It is agreed that each occupied unit of a storage facility represents one End User. VaultDrop, in some cases, may provide a mechanism that interfaces with Customer MIS and/or other IT systems to automatically invite and un-invite End Users as they engage and disengage respectively with Customer as an End User of Customer’s Services, or as other criteria may be met.
1.3 Subject to the terms hereof, VaultDrop will provide Customer and Invited End Users with reasonable technical support services in accordance with the terms set forth in Exhibit C.
1.4 When Customer un-invites, or causes to be uninvited, one of its Invited End Users, the then Uninvited End User shall be provided, at no additional fee, with fifteen (15) days of continued Service from the date of being un-invited to decide whether to (a) download all content and cease use of VaultDrop services, or (b) continue to utilize VaultDrop services as a VaultDrop Proprietary End User.
1.5 Regardless of whether the Uninvited End User chooses (a) or (b) above, they will have ongoing access to view and download their files from VaultDrop. VaultDrop will provide this capability subject to its own goodwill, with the intention of this availability to last indefinitely, but VaultDrop may terminate it with 90 days notice at any time.
1.6 Subject to VaultDrop approval, when a Customer’s Uninvited End User subscribes to a VaultDrop paid services plan and becomes a VaultDrop Paying End User, a one-time referral fee of $10 per PayingEnd User may be paid to Customer. Alternatively, a residual payment of $1 per month may be paid to Customer for each month that an Uninvited End User remains a VaultDrop Paying End User.
2.1 Customer will not, directly or indirectly: reverse engineer, decompile, disassemble or otherwise attempt to discover the source code, object code or underlying structure, ideas, know-how or algorithms relevant to the Services or any software, documentation or data related to the Services (“Software”); modify, translate, or create derivative works based on the Services or any Software (except to the extent expressly permitted by VaultDrop or authorized within the Services); use the Services or any Software for timesharing; or remove any proprietary notices or labels. With respect to any Software that is distributed or provided to Customer for use on Customer premises or devices, VaultDrop hereby grants Customer a non-exclusive, non-transferable, non-sublicensable license to use such Software during the Term only in connection with the Services, per the terms and conditions contained in the published VaultDrop Terms of Services.
2.3 The parties agree to comply all applicable export laws and regulations, specifically: Customer may not remove or export from the United States or allow the export or re-export of the Services, Software or anything related thereto, in violation of any United States or foreign agency or authority. As defined in FAR section 2.101, software and documentation are “commercial items” and according to DFAR section 252.227‑7014(a)(1) and (5) are deemed to be “commercial computer software” and “commercial computer software documentation.” Consistent with DFAR section 227.7202 and FAR section 12.212, any use modification, reproduction, release, performance, display, or disclosure of such commercial software or commercial software documentation by the U.S. Government will be governed solely by the terms of this Agreement and will be prohibited except to the extent expressly permitted by the terms of this Agreement.
2.4 Customer represents, covenants, and warrants that Customer and its Invited End Users will use the Services only in compliance with VaultDrop’s published terms of service and privacy policy in effect and all applicable laws and regulations. Customer hereby agrees to indemnify and hold harmless VaultDrop 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 and from terms of services or privacy policy. VaultDrop has no obligation to monitor use of the Services, however, VaultDrop may suspend or prohibit use that constitutes (or is alleged to be) a violation of the foregoing.
2.5 Customer shall be responsible for maintaining ancillary services needed for it and its Invited End Users to access or otherwise use the Services, including, without limitation, hardware, servers, software, operating systems, networking, web servers, management information systems, other IT systems, and the like (collectively, “Equipment”).
2.6 Customer shall be responsible for its part in maintaining the security of Customer’s account, passwords (including but not limited to administrative and user passwords) and files, and for all uses of Customer account.
3.1 The terms and conditions of this Agreement are private and confidential between the parties and shall not be disclosed to anyone else without the prior written approval by VaultDrop.
3.2 Each party (the “Receiving Party”) understands that the other party (the “Disclosing Party”) has disclosed or may disclose business, technical or financial information relating to the Disclosing Party’s business (hereinafter referred to as “Proprietary Information” of the Disclosing Party). VaultDrop Proprietary Information includes non-public information regarding features, functionality and performance of the Service. Customer Proprietary Information includes non-public data provided by Customer to VaultDrop to enable the provision of the Services (“Customer Data”). The Receiving Party agrees: (i) to take reasonable precautions to protect such Proprietary Information, and (ii) not to use (except in performance of the Services or as otherwise permitted herein) or divulge to any third person any such Proprietary Information. The foregoing shall not apply with respect to any information that (a) is or becomes generally available to the public, or (b) was in the possession of, or known by, the Receiving Party prior to receipt from the Disclosing Party, or (c) rightfully disclosed without restriction by a third party, or (d) was independently developed without use of any Proprietary Information of the Disclosing Party or (e) is required to be disclosed by law.
3.3 Notice of disclosures made contrary to Section 3.1, pursuant to 3.2(e) or made inadvertently must be made as soon as practicable and not later than twenty four hours after the discovery of disclosure or as ordered by law. Disclosures shall be made only to the extent necessary. Finally, the Parties agree to reasonable cooperation to secure any protective orders necessary to preserve confidential information and proprietary rights.
3.4 VaultDrop shall own and retain all right, title and interest in and to (a) the Services and Software, all improvements, enhancements or modifications thereto, (b) any software, applications, inventions or other technology developed in connection with Implementation Services or support, and (c) all intellectual property rights related to any of the foregoing.
3.5 Notwithstanding anything to the contrary, VaultDrop shall have the right to collect and analyze data and other information relating to the provision, use and performance of various aspects of the Services and related systems and technologies (including, without limitation, information concerning Customer Data and data derived therefrom), and VaultDrop will be free (during and after the term hereof) to (i) use such information and data to improve and enhance the Services and for other development, diagnostic and corrective purposes in connection with the Services and other VaultDrop offerings, and (ii) disclose such data solely in aggregate or other de-identified form in connection with its business. No rights or licenses are granted except as expressly set forth herein.
4.1 Customer will pay VaultDrop the then applicable fees described in the Order Form for the Services and Implementation Services in accordance with the terms therein (the “Fees”). If Customer’s use of the Services exceeds the Service Capacity set forth on the Order Form or otherwise requires the payment of additional fees (per the terms of this Agreement), Customer shall be billed for such usage and Customer agrees to pay the additional fees in the manner provided herein. VaultDrop reserves the right to change the Fees or applicable charges and to institute new charges and Fees at the end of the Initial Service Term or then‑current renewal term, upon thirty (30) days prior notice to Customer (which may be sent by email). If Customer believes that VaultDrop has billed Customer incorrectly, Customer must contact VaultDrop no later than 60 days after the closing date on the first billing statement in which the error or problem appeared, in order to receive an adjustment or credit. Inquiries should be directed to VaultDrop’s customer support department.
4.2 VaultDrop may choose to bill through an invoice, in which case, full payment for invoices issued in any given month must be received by VaultDrop thirty (30) days after the mailing date of the invoice. Unpaid amounts are subject to a finance charge of 1.5% per month on any outstanding balance, or the maximum permitted by law, whichever is lower, plus all expenses of collection, and may result in immediate termination of Services. Customer shall be responsible for all taxes associated with Services other than U.S. taxes based on VaultDrop’s net income.
4.3 If agreed upon, VaultDrop will not charge Customer for their first month of service. Additionally, Customer is entitled to a full refund of charges for their second and third months of service, not to exceed any amount paid by Customer for these second and third months of service.
5.1 Subject to earlier termination as provided below, this Agreement is for the Initial Service Term as specified in the Order Form, and shall be automatically renewed for additional periods of the same duration as the Initial Service Term (collectively, the “Term”), unless either party requests termination at least thirty (30) days prior to the end of the then-current term.
5.2 In addition to any other remedies it may have, either party may also terminate this Agreement upon thirty (30) days’ notice. Customer will pay in full for the Services up to and including the last day on which the Services are provided.
5.3 All sections of this 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.
VaultDrop shall use reasonable efforts consistent with prevailing industry standards to maintain the Services in a manner which minimizes errors and interruptions in the Services and shall perform in a professional and workmanlike manner. Services may be temporarily unavailable for scheduled maintenance or for unscheduled emergency maintenance, either by VaultDrop or by third-party providers, or because of other causes beyond VaultDrop’s reasonable control. Nevertheless VaultDrop shall use reasonable efforts to provide advance notice in writing or by e-mail of any scheduled service disruption. However, VaultDrop 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. EXCEPT AS EXPRESSLY SET FORTH IN THIS SECTION, THE SERVICES AND IMPLEMENTATION SERVICES ARE PROVIDED “AS IS” AND VAULTDROP DISCLAIMS ALL WARRANTIES, EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT.
VaultDrop shall hold Customer harmless from liability to third parties resulting from infringement by the Service of any United States patent or any copyright or misappropriation of any trade secret, provided VaultDrop is promptly notified of any and all threats, claims and proceedings related thereto and given reasonable assistance and the opportunity to assume sole control over defense and settlement; VaultDrop will not be responsible for any settlement it does not approve in writing. The foregoing obligations do not apply with respect to portions or components of the Service (i) not supplied by VaultDrop, (ii) made in whole or in part in accordance with Customer specifications, (iii) that are modified after delivery by VaultDrop, (iv) combined with other products, processes or materials where the alleged infringement relates to such combination, (v) where Customer continues allegedly infringing activity after being notified thereof or after being informed of modifications that would have avoided the alleged infringement, or (vi) where Customer’s use of the Service is not strictly in accordance with this Agreement. If, due to a claim of infringement, the Services are held by a court of competent jurisdiction to be or are believed by VaultDrop to be infringing, VaultDrop may, at its option and expense (a) replace or modify the Service to be non-infringing provided that such modification or replacement contains substantially similar features and functionality, (b) obtain for Customer a license to continue using the Service, or (c) if neither of the foregoing is commercially practicable, terminate this Agreement and Customer’s rights hereunder and provide Customer a refund of any prepaid, unused fees for the Service.
VaultDrop will indemnify Customer for an Invited End User’s lost data according to the provisions of VaultDrop’s published Terms of Service. Any guarantees offered or otherwise made available to VaultDrop Proprietary End Users, users acquired by VaultDrop through any source other than Customer, or to any VaultDrop user, customer, or client that is not a Customer Invited End User or a Customer Uninvited End User, shall not apply to or otherwise be made available to Customer’s Invited End Users or Uninvited End Users.
Throughout the Term of the Agreement, VaultDrop obtains and maintains insurance managed by a qualified company, licensed to do business in California. Such policy shall provide protection against any and all claims, demands and causes of action arising out of any defects or failure to perform, alleged or otherwise, of the Services. The amount of coverage shall be for $2 million dollars. The policy shall provide for ten (10) days’ notice in the event of any modification, cancellation or termination.
NOT WITHSTANDING ANYTHING TO THE CONTRARY, VAULTDROP AND ITS SUPPLIERS (INCLUDING BUT NOT LIMITED TO ALL EQUIPMENT AND TECHNOLOGY 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 OR LOST PROFITS; (B) FOR ANY INDIRECT, EXEMPLARY, INCIDENTAL, SPECIAL OR CONSEQUENTIAL DAMAGES; (C) FOR ANY MATTER BEYOND VAULTDROP’S REASONABLE CONTROL; OR (D) FOR ANY AMOUNTS THAT, TOGETHER WITH AMOUNTS ASSOCIATED WITH ALL OTHER CLAIMS, EXCEED THE FEES PAID BY CUSTOMER TO VAULTDROP FOR THE SERVICES UNDER THIS AGREEMENT IN THE 12 MONTHS PRIOR TO THE ACT THAT GAVE RISE TO THE LIABILITY, IN EACH CASE, WHETHER OR NOT VAULTDROP HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
With the exception of alleged breaches of confidentiality or proprietary rights provisions, or disputes related to security vulnerabilities, neither party may file a lawsuit until the completion of the mediation described in this Section. A party shall file a mediation demand with a service similar to JAMS of Southern California, with the non-binding mediation to take place in Los Angeles County, California. The parties will work in good faith to select a mediator who is knowledgeable and experienced in the subject matter of this Agreement. If the parties cannot agree upon a mediator within twenty (20) days of the filing of a mediation demand, then the mediation service provider shall appoint a mediator within (10) days of being informed by one of the parties of the inability to select a mediator. The mediation shall be conducted within forty-five (45) days of the date of the filing of the mediation demand from either party. All negotiations connected with the dispute, including negotiations with a mediator, shall be conducted in confidence and without prejudice to the rights of the parties in any future legal proceedings.
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 VaultDrop’s prior written consent. VaultDrop may transfer and assign any of its rights and obligations under this Agreement without consent. 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. All waivers and modifications to this Agreement 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 VaultDrop in any respect whatsoever. In any action or proceeding to enforce rights under this Agreement, the prevailing party will be entitled 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.
EXHIBIT A
Service Offering
VaultDrop shall provide the availability of unlimited cloud storage service, with individual file sizes not to exceed 25MB, to Customer’s Invited End Users.
EXHIBIT B
Service Level Terms
The Services shall be available 99.9%, measured monthly, excluding holidays and weekends and scheduled maintenance. If Customer requests maintenance during these hours, any uptime or downtime calculation will exclude periods affected by such maintenance. Further, any downtime resulting from outages of third party connections or utilities or other reasons beyond VaultDrop’s control will also be excluded from any such calculation. Customer’s sole and exclusive remedy, and VaultDrop’s entire liability, in connection with Service availability shall be that for each period of downtime lasting longer than one (1) hour, VaultDrop will credit Customer 5% of Service fees for each period of 60 or more consecutive minutes of downtime; provided that no more than one such credit will accrue per day. Downtime shall begin to accrue as soon as Customer (with notice to VaultDrop) recognizes that downtime is taking place, and continues until the availability of the Services is restored. In order to receive downtime credit, Customer must notify VaultDrop in writing within 24 hours from the time of downtime. Failure to provide such notice will forfeit the right to receive downtime credit. Such credits may not be redeemed for cash and shall not be cumulative beyond a total of credits for one (1) week of Service Fees in any one (1) calendar month in any event. VaultDrop will only apply a credit to the month in which the incident occurred. VaultDrop’s blocking of data communications or other Service in accordance with its policies shall not be deemed to be a failure of VaultDrop to provide adequate service levels under this Agreement.
EXHIBIT C
Support Terms
VaultDrop will provide Technical Support to Customer via both telephone and electronic mail on weekdays during the hours of 9:00am through 5:00pm Pacific time, with the exclusion of Federal Holidays (“Support Hours”). Customer may initiate a request during Support Hours by emailing: help@vaultdrop.com
VaultDrop will also provide Technical Support to Customer Invited End Users. Customer Invited End Users may initiate a support request by emailing: help@vaultdrop.com
VaultDrop will use commercially reasonable efforts to respond to all requests within one (1) business day.
