1. Introduction and Acceptance
Afi LLC its corporate affiliates and subsidiaries (Afi) provides, through its proprietary software, "Afi", a data management SaaS platform dedicated to cloud data management, replication, backup and recovery. Afi, including all products, software, services, mobile applications and websites (collectively the "Services") made available by Afi, allow users to replicate data from other cloud services, including G Suite and Office 365, to a secondary cloud storage destanation in GCP or AWS for the purposes of data protection. The Services retain different versions of the original data on the secondary storage, and allow the users to retrive needed versions of the data from the secondary storage. The following terms of services (the Agreement) govern your use of the Services. Please read all of the rights and restrictions set forth in this Agreement. The Agreement is a legally binding agreement between Afi, and "You" as the "User". You must accept the Agreement before being able to use or access the Services. You will not be able to use or access the Services if You do not accept the terms and conditions of this Agreement. BY USING THE SERVICE, YOU AGREE TO THE AGREEMENT. IF YOU ARE ENTERING INTO THIS AGREEMENT ON BEHALF OF A COMPANY OR OTHER LEGAL ENTITY, YOU AGREE THAT YOU HAVE THE AUTHORITY TO BIND SUCH ENTITY TO THIS AGREEMENT, IN WHICH CASE THE TERMS CUSTOMER, USER, YOU, YOUR OR YOURS SHALL REFER TO SUCH ENTITY.
ALL USE OF THE SERVICES SHALL BE SUBJECT TO THE SPECIFICATIONS, FEES, FEATURES, SCOPE, DURATION AND SUCH ADDITIONAL TERMS AND CONDITIONS, WHICH ARE SPECIFIED UNDER THE CORRESPONDING SUBSCRIPTION PLAN and/or SUBSCRIPTION SERVICES AGREEMENT (EACH A "COMMERCIAL AGREEMENT") WHICH YOU OR CUSTOMER HAVE EXECUTED, SIGNED OR OTHERWISE AUTHORIZED IN CONJUNCTION WITH THE PURCHASE OF THE RIGHT TO USE THE SERVICES. THE TERMS AND CONDITIONS OF THE COMMERCIAL AGREEMENT ARE HEREBY INCORPORATED BY REFERENCE INTO THIS AGREEMENT, AND IN THE EVENT OF CONFLICT BETWEEN THE COMMERCIAL AGREEMENT AND THIS AGREEMENT, THE COMMERCIAL AGREEMENT SHALL CONTROL. IN ABSENCE OF SUCH COMMERICAL AGREEMENT, THE TERMS OF THIS AGREEMENT SHALL CONTROL.
"Customer" means the natural or legal person who subscribes and activates the Services made available by Afi and accepts the responsibility for performing payments for these Services.
"Afi" means the online collaborative workspace provided by the Services.
"Services" means the access to all products, software, services and sites of Afi, including the access to your Afi.
"Subscription Plan" refers to the specific access terms of a Customer to the Services in consideration of the payment of a fee for a defined period.
"Content" means any data, information, pictures, files, sounds, texts, programs, software, codes, or elements of any kind that would be operated, broadcast, stored, transmitted, sent, collected, processed or made available directly or indirectly using the Services.
"User" means Customer’s employees, agents, consultants, contractors or other individual users that have been granted the right to access and use the Services by Customer, in the performance of their duties for Customer, and for which Customer has purchased the Services.
3. Subscription Accounts
In order to use the Services, You will be asked to complete and submit a subscription form. As part of the subscription process, You are required i) to create a unique username and password in connection with User account (collectively referred to herein as your "Username"); (ii) to provide and maintain up-to-date account information including a valid legal name, valid email address and any other information reasonably requested to use the Service, as prompted by the registration and log in process (such information being your "Account Information"); (iii) be listed as reference on commercial sites featuring Afi. You agree not to allow any other person to use your personal Username to access or use the Services under any circumstances. You are solely and entirely responsible for maintaining the confidentiality of your Username and for all the activities operated under your account.
You are not allowed to subscribe to the Services if You are under twenty-one (21) years of age. When subscribing, You certify to Afi that You are twenty-one (21) years of age or older. If it comes to Afi’ attention that any of your Account Information is inaccurate, incomplete or out-of-date, or if Afi decides, at its sole discretion, that You are not an appropriate subscriber or user to the Services, Afi may terminate your access and rights to use the Services immediately and without notice. You agree to be informed by email regarding Afi new services, product launches, announcements, changes to this Agreement, and/or billing information for the Services. Your subscription information will not be shared with any third party without your prior consent.
Afi is not responsible for any losses or damages you may suffer due to unauthorized use of your account. The access to protected passwords and/or secure parts is reserved to authorized Users only. You agree to immediately notify Afi of any misuse of your account or any other known security breach.
4. Rights Granted
During the duration of the term of Your Subscription Plan (as set forth therein), and subject to compliance with this Agreement and Your Subscription Plan, Afi hereby grants to You a worldwide, non-transferable, non-exclusive and limited right to access and use the Services. Such right cannot be sublicensed.
Afi hereby retains all right, title and interest in and to the Services, the documentation and associated intellectual property rights, and You acknowledge that you neither own nor acquire any intellectual property rights or license to use the Services in excess of the scope and/or duration of the Services stated in the Subscription Plan. Upon the end of the Services ordered, Your right to access and use the Services will terminate.
To enable Afi to provide You with the Services, You grant Afi the right to use, process, and transmit, in accordance with this Agreement and the Subscription Plan, Your Content for the duration of the Term plus any additional post-termination period during which Afi provides You with access to retrieve Your Content.
Except as otherwise expressly set forth, you acknowledge and agree that i) Afi has no delivery obligations for the Services and will not deliver copies of such programs to You as part of the Services; ii) the form and nature of the Services made available by Afi are likely to be changed without any prior notice; and iii) Afi reserves the right to take actions which can affect the Services availability if deemed appropriate by Afi. Afi agrees to take reasonable actions in order to make the Services available via the Internet, twenty-four (24) hours a day, seven (7) days a week. Afi is not responsible for any unavailability related to your Internet connection.
5. Use of the Services
You agree (i) not to try to obtain an unauthorized access to other computer systems or interfere with the use and enjoyment of the Services by another user (ii) to comply with the State and Federal laws governing the Services, (iii) not to send, distribute, make available nor transmit any software or other computer files containing viruses/harmful components; (iv) not to use the Services for illegal purposes; (v) modify or make derivative works based upon the Services (or the ideas, features, functions, content or graphic thereon); (vi) not to interfere with or disrupt networks connected to the Services; (vii) not to infringe the copyright, patent, trademark, trade secret or any other proprietary rights of a third party; (viii) not to transmit documents that are illegal, confidential without authorization, or constituting harassment, defamatory, racist, indecent, abusive, violent, threatening, vulgar, obscene or any other unacceptable document of any kind whatsoever; (ix) not to reproduce, duplicate, copy, sell, market, or resell the Services for any purpose whatsoever; and (x) copy, distribute, perform, or display any ideas, features, functions, content or graphics which are proprietary to the Services.
You acknowledge that You are solely responsible for (and that Afi is not liable to You or any third party) any breach of your obligations as defined by this Agreement and for the consequences that such a breach could have (including any loss or damage suffered by Afi).
You retain all ownership and intellectual property rights in and to Your Content. Afi and its suppliers own and retain all rights, title and interest in and to all intellectual property rights embodied in or associated with the Services and derivative works thereof, and to anything developed, delivered by or on behalf of Afi under this Agreement. There are no implied licenses under this Agreement, and any rights not expressly granted to You hereunder are reserved by Afi and its suppliers. You shall not engage in any act or omission that would impair Afi’ intellectual property rights in the Services and any other materials, information, processes or subject matter proprietary to Afi.
You may not and may not cause or permit others to:
a. Remove or modify any program markings or any notice of Afi’ or its licensors’ proprietary rights;
b. Make the programs or materials from the Services (except Your Content) available in any manner to any third party for use in the third party’s business operations;
c. Modify or make derivative works of, disassemble, decompile, reverse engineer, reproduce, distribute, republish or download any part of the Services, or access or use the Services in order to build or support, and/or assist a third party in building or supporting, products or Services competitive to Afi;
d. License, sublicense, sell, resell, transfer, assign, distribute or otherwise commercially exploit or make available to any third party the Services or Afi materials or documentations in any way.
7. Limited Warranty
Afi, ITS AFFILIATES AND THEIR RESPECTIVE officers, directors, managers, partners, members, shareholders, employees, affiliates and agents, MAKE NO, AND EXPRESSLY DISCLAIM, ANY AND ALL REPRESENTATIONS AND WARRANTIES OF ANY KIND OR NATURE, WHETHER EXPRESS, IMPLIED OR STATUTORY, WITH RESPECT TO THE SERVICES, INCLUDING, BUT NOT LIMITED TO, ANY WARRANTIES OF QUALITY, VALUE, OPERABILITY, CONDITION, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, ACCURACY, COMPLETENESS, TIMELINESS, FUNCTIONALITY, RELIABILITY, SEQUENCING, SPEED OF DELIVERY, AVAILABILITY, SECURITY, SYSTEM INTEGRATION, WORKMANSHIP, SUITABILITY, TITLE, NON-INFRINGEMENT, FREEDOM FROM VIRUSES OR MALWARE, AND/OR THE ABSENCE OF DEFECTS THEREIN, WHETHER LATENT OR PATENT. USER ACKNOWLEDGES THAT Afi’ OBLIGATIONS UNDER THIS AGREEMENT ARE FOR THE BENEFIT OF USER ONLY. Your use of the SERVICES AND THE Site is on an "as is" and "as available" basis.
8. Limitations of damages and responsibilities
IN NO EVENT SHALL Afi, ITS AFFILIATES AND THEIR RESPECTIVE officers, directors, managers, partners, members, shareholders, employees, affiliates and agents BE LIABLE TO ANY PERSON FOR ANY CLAIMS, LIABILITIES, LOSSES, COSTS OR DAMAGES UNDER ANY THEORY, INCLUDING BUT NOT LIMITED TO ANY DIRECT, INCIDENTAL, INDIRECT, SPECIAL, CONSEQUENTIAL OR PUNITIVE DAMAGES, REGARDLESS OF THE NATURE OF ANY SUCH CLAIM, INCLUDING, WITHOUT LIMITATION, LOST PROFITS, COSTS OF DELAY, ANY FAILURE OF DELIVERY, BUSINESS INTERRUPTION, COSTS OF LOST OR DAMAGED DATA OR DOCUMENTATION OR LIABILITIES ARISING OUT OF OR IN CONNECTION WITH ANY ACCESS, INSTALLATION, DOWNLOAD OR USE (OR INABILITY TO USE) OF THE SERVICES, EVEN IF Afi, USER OR SUCH PERSON HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. THIS LIMITATION IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS TERMS HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
THE CUMULATIVE LIABILITY OF Afi TO USER FOR ALL CLAIMS ARISING FROM OR RELATING TO THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY CAUSE OF ACTION SOUNDING IN CONTRACT, TORT, OR STRICT LIABILITY, SHALL NOT EXCEED THE TOTAL AMOUNT OF ALL FEES HAVING BEEN PAID TO Afi BY USER FOR THE SERVICES TO WHICH THE LIABILITY RELATES WITHIN THE PRECEDING 12 MONTH PERIOD. THIS LIMITATION OF LIABILITY IS INTENDED TO APPLY WITHOUT REGARD TO WHETHER OTHER PROVISIONS OF THIS AGREEMENT HAVE BEEN BREACHED OR HAVE PROVEN INEFFECTIVE.
9. Subscriptions and Fees
All use of the Services shall be subject to the specifications, fees, features, scope, duration and such additional terms and conditions, which are specified under the corresponding Subscription Plan. Access to the Services and the use of products related to them is a right exclusively granted under the terms defined in the Subscription Plan purchased and especially for the number of Users, features, support and storage space defined in the aforementioned Subscription Plan.
Free plans expressly granted by Afi do not require the payment of any subscription fees. If You subscribed to a free plan, Afi will provide You with the free access to the Services beginning on your subscription confirmation date. If You subscribed to a free plan, You can upgrade to payable Subscription Plans at any time.
Afi reserves the right, in its sole discretion, to terminate your access to the Services and any related services or any portion thereof at any time, without notice if i) you breach this Agreement without taking corrective actions within a period of five (5) days after receiving a written notice; (ii) Afi is unable to verify or authenticate Your Account Information or Your Account Information is or becomes inaccurate; or if (iii) Afi decides, at its sole discretion, to discontinue the provision of the Services. Termination shall not be effective with respect to any provision of this Agreement that is either specifically designated as surviving termination, or should reasonably survive in order to accomplish the objectives of this Agreement. User must return or destroy all copies of the Services, including any updates or prior versions, immediately upon notice of termination of this Agreement. Upon expiration or termination for any reason whatsoever, You are no longer authorized to use the Services, You will no longer have access to the data and other documents that You have stored in connection with the Services and these documents can be deleted by Afi.
11. Assistance, updates, backups
You acknowledge that Afi may perform updates at any time but it is not obliged to inform You. Subject to compliance with this Agreement, Afi may provide support to the You in certain circumstances. The Parties will communicate via the email addresses that the User indicated when subscribing to Services.
User agrees to indemnify, hold harmless and, at Afi’ option, defend Afi from and against any losses, liabilities, costs (including reasonable attorneys' fees) or damages resulting from User’s use of the Services in violation of this Agreement. User shall not settle any claim unless such settlement completely and forever releases Afi from all liability with respect to such claim or unless Afi provides its prior written consent to such settlement, and further provided that Afi shall have the right, at its option, to defend itself against any such claim or to participate in the defense thereof by counsel of its own choice.
By virtue of this Agreement, Afi may disclose to You certain information that is confidential to Afi (the "Confidential Information"). You agree not to disclose the Confidential Information to any third party other than as set forth herein for a period of three (3) years from the date of the disclosure of the Confidential Information to You. You will not use the Confidential Information except (i) as necessary to perform Your duties under this Agreement; and (ii) in any other manner that this Agreement expressly authorizes. Your duties under this section will apply to (i) information which is marked to clearly identify it as the Afi’ Confidential Information, or, if disclosed orally, which is identified as Confidential Information both at the time of disclosure; and (ii) information which, due to its nature or the circumstances surrounding its disclosure, any reasonable person would conclude is intended to be considered confidential and proprietary for purposes of this Agreement.
For the purposes of this Agreement, Confidential Informational shall mean data or information in any form disclosed by Afi to You by any means, if and for so long as the data and information are protectable as trade secrets by Agreement or are otherwise subject to legal rights that give Afi, independent of contract, a right to control use and/or disclosure of the data and information.
Confidential Information shall not include information that: (a) is or becomes a part of the public domain through no act or omission of You; (b) was in Your lawful possession prior to the disclosure and had not been obtained by You either directly or indirectly from Afi; (c) is lawfully disclosed to You by a third party without restriction on the disclosure; or (d) is independently developed by You.
Afi will protect the confidentiality of Your Content residing in the Services in accordance with the security practices defined as part of the Service specifications in the applicable Subscription Plans.
14. Personal data
15. Force majeure
Afi shall not be responsible for any unavailability, failure or delay of performance if caused by: an act of war, hostility, or sabotage; act of God; pandemic; electrical, internet, or telecommunication outage that is not caused by Afi; government restrictions (including the denial or cancelation of any export, import or other license); or other event outside the reasonable control of Afi. Afi will use reasonable efforts to mitigate the effect of a force majeure event.
You may not assign this Agreement or give or transfer the Services or an interest in them to another individual or entity.
17. Severability; No Waiver.
In the event that any term or condition of this Agreement is determined to be invalid, illegal or otherwise unenforceable, such determination shall have no effect on the other terms and conditions, which shall continue to be binding upon the parties hereto. Lack of enforcement of any term or condition in this Agreement shall not be construed as a waiver of any rights conferred by such term or condition.
18. Governing Law and Jurisdiction
This Agreement will be governed and construed in accordance with the laws of the State of Texas without giving effect to conflict of laws principles that would require the application of the laws of any other jurisdiction. Both Parties agree that any action or proceeding arising from or relating to this Agreement may be brought in a court of competent jurisdiction, federal or state, located in the city of Houston, Texas. Each Party irrevocably submits to the personal jurisdiction and venue of, and agrees to service of process issued or authorized by, any such court in any such action or proceeding. Neither the United Nations Convention of Contracts for the International Sale of Goods nor the Uniform Computer Information Transactions Act will apply to this Agreement.
19. Notices; Amendment
Notice may be sent to the email address You used when subscribing to the Services or any other means that Afi determines at its sole discretion. Afi may revise the Agreement at any time by (i) posting a revised version of the Agreement on Afi commercial sites and/or (ii) sending information regarding the Agreement amendment to the email address You provided to Afi. No special terms, nor general terms of purchase, unless otherwise accepted in written and express form by Afi, will prevail over this Agreement or supplement them.