OAK TREE STORAGE, LLC | SERVICE TERMS & CONDITIONS
Oak Tree Storage, LLC (“Oak Tree”, “OTS”) agrees to provide you (“you”, “user”, “customer”) the Oak Tree Storage Online Backup, Archive, Restore and/or Server Services (the “Service”) for any servers you enroll (each, a “Protected Server”), as described in the Oak Tree Service Level Agreement (the “Service Level Agreement”), according to the Plan Option and Retention Period selected, in accordance with the following Terms and Conditions:
1. Term of Agreement
You subscribe to the Service for either sequential, single monthly use or a consecutive twelve (12) month period (the “Initial Term”) of Basic Service [unless cancelled per Section 4].
The Initial Term commences immediately following an initial, optional trial period (“Trial Period”, defined elsewhere on our website), if selected or, if the optional Trial Period is not selected, immediately following the date of your acceptance of this Agreement.
At the end of the Initial Term, your Service will automatically be renewed for an additional one- or twelve-month period at the then prevailing rate structure unless a notice of termination (“Termination Notice”) is sent to custserv@oaktreestorage.com at least 30 days prior to the end of the current period in accordance with Section 4. This Termination Notice must include: your company name, contact name, address, telephone number, account name, account number, server name(s) for which services are being terminated, and requested termination date.
2. Service Fees
All charges for the Service under this Agreement shall be as specified in the Pricing Schedule. The fee structure for the Service Plan you elect shall remain fixed for the Initial Term unless you agree to upgrade your plan during that term or your usage is such that you are automatically shifted into a different range. Service renewals will be priced using the Service Plan and fees in effect at the date of the service renewal. You will be provided with thirty (30) days’ advance notice of any changes. Charges for Additional Service Options may be changed at any time upon thirty (30) days’ posted notice, unless otherwise provided herein.
As you approach your storage limit Oak Tree will endeavor to notify you of that fact via email so you may choose a course of action, whether it be reducing the amount of storage you use or increase your plan to the next level of storage. (Various options will be presented in the email you will receive. For more information, ontact custserv@oaktreestorage.com.) Your selected plan creates a maximum amount of storage dedicated for your use in the Oak Tree system, and it will prevent any further backups until you reduce the amount of storage used by, or increase the capacity (Plan) for, your account.
3. Payments
OTS will provide the Services to you, with certain restrictions, free of charge for an initial trial period (“Trial Period”, defined elsewhere on our website). After the expiration of that Trial Period you authorize OTS to bill your credit card automatically for use of the Services at the published rate applicable to the subscription plan you elect for an initial term of one or twelve months (“Initial Term”). See related links on our website for more information about the Services, subscription plans and pricing information.
Monthly Subscriptions. You acknowledge that your Monthly Subscription covers single, consecutive months, one month at a time. For Monthly Subscriptions, OTS will charge your credit card for the total monthly amount immediately following the Trial Period or immediately upon your acceptance of this Agreement if you do not opt for the Trial Period. At the end of each month your subscription will automatically be renewed for another one-month term at the then-current monthly pricing plan, and your credit card will be charged in full by OTS for the new month unless another plan is selected or you cancel your subscription prior to the beginning of the next billing cycle in accordance with Section 4. Your first month’s subscription, if not beginning on the first day of your billing cycle, will be pro-rated for the percentage of that month for which you use the Service. In the event that you cancel or terminate the Services at any time during any one-month term (“Early Termination”), you acknowledge and agree that you will be charged and will pay a fee (“Early Termination Fee”) as liquidated damages to Oak Tree equal to one month times the then-current Monthly Base Plan Cost; and the parties hereby agree and acknowledge that such Early Termination Damages are reasonable in light of the fact that Oak Tree’s damages may be difficult to fix with precision, and explicitly apply to all contracts, including multi-year contracts, if any. However, if you decide to upgrade to an annual or more expensive subscription plan during the term of your monthly subscription period, any remaining prepaid fees from your then current plan will be credited to your new plan.
Annual Subscriptions. You acknowledge that your Annual Subscription covers a consecutive, twelve (12) month term. For Annual Subscriptions, OTS will charge your credit card for the total annual amount including any prepayment discounts immediately following the Trial Period, or each month on a monthly basis in advance for the agreed yearly rate with a lesser or no discount depending on the terms of your agreement, which price which will remain in effect during your term. At the end of your term, your subscription will automatically be renewed for another twelve (12) month term at the then-current annual pricing plan, and your credit card will be charged in full by OTS for the new twelve (12) month term including any prepayment discounts available at that time, or in monthly installments with a lesser or no prepayment discount, depending upon the option you selected, unless another plan is selected or you cancel your subscription prior to the beginning of the next billing cycle in accordance with Section 4. Your first month’s charge, if not beginning on the first day of your billing cycle, will be pro-rated for the percentage of that month for which you use the Service. In the event that you cancel or terminate the Services at any time during a twelve (12) month term (“Early Termination”), you acknowledge and agree that you will be charged and will pay a fee (“Early Termination Fee”) as liquidated damages to Oak Tree equal to (a) ten percent (10%) of the Annual Base Plan Cost times the number of full or partial months remaining in your term, regardless of whether it is billed annually or monthly, but in no event less than $100, in the case of an Annual subscription. The parties hereby agree and acknowledge that such Early Termination Damages are reasonable in light of the fact that Oak Tree’s damages may be difficult to fix with precision, and explicitly apply to all contracts, including multi-year contracts, if any. However, if you decide to upgrade to a more expensive subscription plan during the term of your annual subscription period, any remaining prepaid fees from your then current plan will be credited to your new plan.
All Subscriptions. If you subscribe to a promotional plan you acknowledge that your subscription and fees are based on the then-current promotional plan you have selected. Your subscription will automatically be renewed at the then prevailing pricing plan at the time of your subscription renewal, not at the promotional rate, and your credit card will be billed by OTS for the renewal of service, unless another plan is selected or you cancel your subscription in accordance with Section 4 prior to the beginning of the next billing cycle. In the event that OTS is forced to collect any unpaid amounts owed to OTS, you agree to pay all costs of collection, including, but not limited to, attorney’s fees.
Depending on the subscription plan you have chosen, you authorize a recurring monthly or annual charge to your credit card in exchange for your use of the Services, based on OTS’s then current fee schedule for the Services, which may be amended from time to time in OTS’s sole discretion.
IF YOUR USE OF THE SERVICES EXCEEDS THE LIMITS OF YOUR CHOSEN SERVICE PLAN IN ANY GIVEN PERIOD AS DEFINED IN THE PRICING SCHEDULE, YOUR BACKUP WILL ABORT AND YOU WILL NOT BE ABLE TO CONTINUE THAT ABORTED BACKUP OR PERFORM ANY SUBSEQUENT BACKUPS UNTIL YOU EITHER REDUCE YOUR EXISTING DATA STORAGE OR SUBSCRIBE TO A HIGHER CAPACITY PLAN. YOU WILL CONTINUE TO BE BILLED AT YOUR APPLICABLE SERVICE LEVEL RANGE FOR THAT PERIOD AND ALL SUBSEQUENT PERIODS REMAINING IN YOUR SUBSCRIPTION, AND YOUR ACCOUNT WILL BE CHARGED ACCORDINGLY. Unless the services are terminated by user or OTS as set forth in these terms and conditions, when your subscription is automatically renewed for the next service period, any applicable fee changes will be applied to your account for that next service period.
You will receive a backup status email each time your backup runs on our server. It includes all relevant capacity information for your current plan: your billing plan, your storage quota, and the amount of storage you’re currently using. It is your responsibility to monitor this information and act accordingly, by either managing your account online or by contacting Oak Tree Storage, LLC Customer Service for assistance.
Payments will be charged to your credit card up to ten (10) days in advance of the billing cycle for your subscription, which will typically be the first of each month. (For subscriptions initiating at other times of a month, the first month’s billing will be pro-rated to the first of the following month and included in the first full month’s billing.) Any amounts not covered by your credit card for any reason will bear late charges at the rate of one and one-quarter percent (1.25%) per month compounded on a daily basis from the date due until the date paid. You shall be liable for all expenses incurred in collecting charges that are in arrears, including reasonable attorneys’ fees.
If you fail to pay the charges of Oak Tree Storage, LLC for a period of thirty (30) days after the due date of any charge, or your credit card company rejects a charge for any reason not attributable to Oak Tree, Oak Tree may, after giving you ten (10) business days email notice, at its option (a) cease providing the Service and/or (b) refuse requests to restore your data. If you are in arrears for a period of two (2) months or longer, Oak Tree may, after providing ten (10) days prior notice by email, delete all data transmitted to it by you. IN THE EVENT OAK TREE TAKES ANY ACTION PURSUANT TO THIS SECTION, IT SHALL HAVE NO LIABILITY TO YOU OR ANYONE CLAIMING BY, FOR OR THROUGH YOU. Nothing herein shall preclude Oak Tree from pursuing other remedies authorized by statute or otherwise.
4. Cancellation Rights and Charges
You may cancel the Service within the first 30 days of the commencement of the Initial Term (the “Cancellation Rights Period”) without incurring any Basic Service Fees, Activation Fees or Early Termination Fees. Otherwise, if Service is cancelled before the end of its term, you shall pay, as liquidated damages to Oak Tree, Early Termination Fees equal to (a) ten percent (10%) of the Annual Base Plan Cost times the number of full or partial months remaining in your term, regardless whether it is billed annually or monthly, but in no event less than $100, in the case of an Annual subscription; or (b) one month times the Monthly Base Plan Cost; and the parties hereby agree and acknowledge that such Early Termination Damages are reasonable in light of the fact that Oak Tree’s damages may be difficult to fix with precision, and explicitly apply to all contracts, including multi-year contracts, if any.
The Cancellation Notice should be sent to custserv@oaktreestorage.com and should include: your company name, contact name, address, telephone number, account name, account number, server name(s) for which services are being terminated, and requested termination date. Early Termination Fees will be due and payable upon receipt of electronic and/or paper invoice.
You understand that all data stored by OTS on your behalf under this Agreement shall be deleted 14 calendar days from the date the Agreement is terminated (the “Termination Period”), without further consent from or notice to you (unless deleted earlier for improper or impermissible use), regardless of length of your contract. Prior to the last day of such Termination Period, you should endeavor to remove all of your stored files and data from OTS’s servers and/or to cure any breach of these Terms and Conditions, in which case OTS may reinstate your account in its sole discretion. OTS may destroy any of your stored data and files that are not removed from OTS’s servers within the Termination Period and/or OTS may limit or preclude your ability to retrieve or restore data and files stored on OTS’s servers until you comply with these Terms and Conditions and bring your account current, all in OTS’s sole and absolute discretion. YOU ACKNOWLEDGE AND UNDERSTAND THAT OTS RESERVES THE RIGHT TO DESTROY ALL OF A USER’S DATA AND FILES IMMEDIATELY ON THE EXPIRATION OF THE TERMINATION PERIOD WITHOUT ANY LIABILITY WHATSOEVER. By using the Software you are agreeing to release OTS from any and all liability, claims and damages due to lost or stolen data whether or not you request a data copy.
5. Software On This Web Site
Software (if any) that is made available to download from this web site (” Software”) is the copyrighted work of Oak Tree Storage, LLC and/or its suppliers. Your use of such Software is governed by the terms of the end user agreement, if any, which accompanies or is included with the Software (“License Agreement”), and the Oak Tree Storage, LLC Terms and Conditions. You may not install or use any Software that is accompanied by or includes a License Agreement unless you first agree to the License Agreement terms. For any Software not accompanied by a license agreement, Oak Tree Storage, LLC hereby grants to you, the user, a personal, non-transferable license to use the Software for viewing and otherwise using this web site in accordance with these terms and conditions, and for no other purpose. Please note that all Software, including without limitation all HTML code and Active X controls contained in this web site, is owned by Oak Tree Storage, LLC and/or its suppliers and is protected by copyright laws and international treaty provisions. Any reproduction or redistribution of the Software is expressly prohibited by law, and may result in severe civil and criminal penalties. Violators will be prosecuted to the maximum extent possible. WITHOUT LIMITING THE FOREGOING, COPYING OR REPRODUCTION OF THE SOFTWARE TO ANY OTHER SERVER OR LOCATION FOR FURTHER REPRODUCTION OR REDISTRIBUTION IS EXPRESSLY PROHIBITED. THE SOFTWARE IS WARRANTED, IF AT ALL, ONLY ACCORDING TO THE TERMS OF THE LICENSE AGREEMENT. You acknowledge that the Software, and any accompanying documentation and/or technical information, is subject to applicable export control laws and regulations of the USA. You agree not export or re-export the Software, directly or indirectly, to any countries that are subject to USA export restrictions.
6. Limited Warranty
Oak Tree warrants that, once the Initial Backup has successfully completed, the Service provided by Oak Tree will conform to the specifications set forth in the applicable Service Level Agreement for the Retention Period selected.
EXCEPT FOR THIS WARRANTY, OAK TREE AND ITS LICENSORS DISCLAIM ANY AND ALL OTHER WARRANTIES, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, TITLE, AND NON-INFRINGEMENT WITH RESPECT TO THE SERVICE.
This limited warranty gives you specific legal rights, and you may also have other rights, which vary from jurisdiction to jurisdiction. If you believe that the Service does not conform to the warranty described above, contact Customer Service. Oak Tree’s exclusive liability and your sole remedy for breach of this limited warranty shall be either re-performance of the specific service component which failed, free of charge, or, at your sole discretion, refund of any fees paid by you for the monthly period in which the specific service component failed to conform to this limited warranty. Some jurisdictions do not allow the exclusion or limitation of relief, incidental or consequential damages, so the above limitation or exclusion may not apply to you.
OAK TREE STORAGE, LLC WARRANTS THAT THE SOFTWARE, IF USED IN ACCORDANCE WITH THESE TERMS AND CONDITIONS, WILL PERFORM SUBSTANTIALLY THE FUNCTIONS DESCRIBED IN THE SERVICE LEVEL AGREEMENT. EXCEPT AS SET FORTH ABOVE, OTS DOES NOT WARRANT (i) THAT THE SOFTWARE WILL WORK IN COMBINATION WITH OTHER PRODUCTS USED BY YOU, (ii) THAT THE SOFTWARE WILL MEET YOUR REQUIREMENTS, (iii) THAT THE SOFTWARE OR THE WEB SITE WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE, (iv) THAT THE SOFTWARE WILL WORK PROPERLY OR AT ALL ON OR WITH YOUR PARTICULAR SERVER HARDWARE, OPERATING PLATFORM AND/OR OTHER APPLICATIONS OR FILE SYSTEMS, OR (v) THAT ALL SOFTWARE OR WEB SITE ERRORS WILL BE CORRECTED. If you report a Software error which represents a failure of this warranty, OTS will, at its option, (i) correct or provide a reasonable workaround for the error; (ii) provide a replacement of the Software which complies with the warranty; or (iii) upon return of the Software to OTS, refund any remaining subscription fees if prepaid.
The limited warranties in this section shall not apply to any defects which are caused by (i) modifications of the Software made by any party other than OTS and/or its suppliers; (ii) a failure of your hardware or other software to function normally in conjunction with the Software where such failure is not directly caused by the Software; or (iii) your failure to use the Software according to OTS’s specifications and these Terms. The remedies set forth in this section are your sole and exclusive remedies, and OTS’s sole and exclusive liability, for any breach of the limited warranties provided in these Terms and Conditions.
User hereby releases OTS, its affiliates and subsidiaries, and their respective directors, officers, employees, agents, shareholders, co-branders, partners, successors and assigns from any and all actual or alleged damages which may result from User downloading any information or materials from the Website(s).
Some states or jurisdictions do not allow the exclusion of implied warranties or limitations on the length of an implied warranty, so the above limitations may not apply to you. To the extent permissible, any implied warranties are limited to thirty (30) days. This warranty gives you specific legal rights. You may have other rights that vary from state to state or jurisdiction to jurisdiction. For further warranty information, contact OTS at custserv@oaktreestorage.com
7. Limitation of Liability
THE CUMULATIVE LIABILITY OF OAK TREE, ITS SUPPLIERS AND/OR LICENSORS TO YOU AND ANY AND ALL OTHER PARTIES FOR ANY LOSS OR DAMAGES RESULTING FROM ANY CLAIMS, DEMANDS, OR ACTIONS ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE USE OF THE SERVICE, OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICE, SHALL NOT EXCEED THE TOTAL FEES PAID BY YOU DURING THE PERIOD OF THREE (3) MONTHS IMMEDIATELY PRECEDING THE DATE ON WHICH THE EVENT GIVING RISE TO THE CLAIM OCCURRED OR THE PRORATA EQUIVALENT IF YOU HAVE PURCHASED AN ANNUAL PLAN. OAK TREE, ITS SUPPLIERS AND/OR LICENSORS SHALL NOT BE LIABLE FOR ANY SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY, PUNITIVE OR OTHER INDIRECT DAMAGES, OR FOR LOST PROFITS, LOST OR DAMAGED ASSETS OR LOST DATA ARISING OUT OF THE USE OR INABILITY TO USE ANY OF THE SERVICES OR ANY DATA SUPPLIED THEREWITH OR ANY FAILURE OR DELAY IN DELIVERING THE SERVICE, EVEN IF OAK TREE HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES.
Some jurisdictions do not allow the exclusion or limitation of special, incidental, consequential, indirect or exemplary damages, or the limitation of liability to specified amounts, so the above limitation or exclusion may not apply to you.
8. Other
8.1 Claim and Filing of Suit. You must present any claim in writing to Oak Tree within a reasonable time, and in no event any longer than sixty (60) days after the event for which the claim is presented. No action may be maintained against Oak Tree for loss, damage or destruction of data transmitted, unless timely written claim has been given as provided above, and unless such action is commenced within nine (9) months after the date on which such written claim delivered in accordance with the foregoing, has been received by Oak Tree./p>
8.2 Notices
8.2.1 Notices to OTS. To be valid, notices must be sent by email (to custserv@oaktreestorage.com) and by certified mail, return receipt requested, to Oak Tree Storage, LLC; Attention: Legal Department; P.O. Box 20503; Cherokee Station, New York, New York, 10021-0069, or to such other address as may be designated by OTS from time to time. Notices to OTS shall be deemed to have been given three days after the date of mailing by certified mail, return receipt requested.
8.2.2 Notices To User. Notices to User will be sent by email at the email address reflected in User’s registration information. Notices to User shall be deemed to have been received 24 hours after the email is sent.
8.3 Ownership Warranty. You warrant that you are the owner or legal custodian of the data transmitted to Oak Tree pursuant to the terms of this Agreement and that you have full authority to transmit said data and direct its disposition in accordance with the terms of this Agreement. OTS cannot and hereby does not assume any responsibility for compliance or non-compliance with any and all licensing or any other requirements or restrictions associated with any of the aforementioned information, and accepts no liability for the licensing compliance or non-compliance of your information. It is your responsibility to ensure that you are authorized to backup any and all software and/or data that you back up to the OTS servers.
You further represent and warrant that the information you provide to OTS during the registration process (the “User Information”): (1) is accurate and complete at the time of registration, and (2) will be continuously updated by you in such a way that the User Information shall at all times be current, accurate, and complete.
8.4 Confidentiality. “Confidential Information” means any information (without regard to the medium on which such information may be recorded, whether written, visual, audio, graphic, computerized or otherwise, whether or not encrypted and regardless of mode of encryption, concerning or relating to your property, business and affairs and specifically includes data transmitted from any Protected Server to Oak Tree Storage Servers. Confidential Information shall be held in confidence by Oak Tree and shall be used only for the purposes provided for in this Agreement. Oak Tree shall use the same degree of care to safeguard your Confidential Information as it utilizes to safeguard its own Confidential Information. Oak Tree may comply with any legal subpoena or similar order by an authorized legal agency or department related to you data on any Oak Tree servers located within an Oak Tree authorized facility, provided that Oak Tree notifies you promptly upon receipt thereof, unless such notice is prohibited by law. You shall pay Oak Tree’s reasonable charges for such compliance.
The terms of the OTS Privacy Statement, as it may be amended from time to time in OTS’s sole discretion, are incorporated by reference into these Terms and Conditions. You are encouraged periodically to review the OTS Privacy Statement posted on the Website at www.oaktreestorage.com.
8.5 Indemnification. You agree to fully indemnify and hold harmless Oak Tree and its employees and agents for any liability, cost or expense (including litigation expenses and reasonable attorneys’ fees) arising out of (i) Oak Tree’s possession of your data, or (ii) your breach of the terms and conditions of this Agreement.
8.6 Modification; Authority; Assignment. Oak Tree may modify any aspect of this Agreement or the applicable Service Level Agreement upon 30 days prior notice. Should you wish to terminate the Service as a result of such modification, you may do so by sending a Termination Notice to custserv@oaktreestorage.com any time prior to the effective date of such modification; in such instance no Early Termination Fees will apply. Otherwise such modification will remain in effect for the remaining Term.
You acknowledge that you have the authority to enter into this Agreement on behalf of your company and that you may authorize other individuals to purchase additional services. This Agreement binds you and any of your authorized users, as well as your heirs, executors, successors, and assigns, and cannot be changed orally. As a condition precedent to your installation of the Oak Tree Software Agent, you must elect to accept the Software License Agreement and Service Level Agreement. In the event you elect not to accept such agreements, this Agreement shall automatically terminate without further action or notice and without liability to any party. CUSTOMER IS ADVISED TO CAREFULLY REVIEW THE SERVICE LEVEL AGREEMENT FOR IMPORTANT INFORMATION REGARDING SERVICE REQUIREMENTS, USAGE RESTRICTIONS AND SUPPORT FUNCTIONS RELATING TO THE SERVICE. You shall also be responsible for complying with, and/or acknowledging, any “terms of use” and “privacy policy” posted on the Oak Tree’s and/or any of its subsidiary or affiliated web sites.
User shall not be entitled to assign, sublease, sublicense, sell, offer for sale, encumber or otherwise transfer or dispose of its rights under this Agreement, in whole or in part, without OTS’s prior written consent (other than to an affiliate which shall fully assume the obligations of its assignor by written instrument) without the written consent of Oak Tree, which shall not be unreasonably withheld or delayed.
OTS shall be entitled to assign this Agreement or any of its rights under this Agreement in its sole discretion and such assignment will be considered to be properly effected following 30 days electronic notice to you.
8.7 Governing Law; Jurisdiction. This Agreement is governed by the laws of the State of New York, excluding its conflicts of laws principles. You hereby submit to the exclusive jurisdiction of the federal and state courts of the State of New York; provided, however, that Oak Tree shall have the right to institute judicial proceedings against you or anyone acting by, through or under you, in other jurisdictions, in order to enforce Oak Tree’s rights hereunder through reformation of contract, specific performance, injunction or similar equitable relief. Each party hereby irrevocably waives any and all rights to a jury trial and any objection which it may now or hereafter have to the laying of venue of any suit, action or proceeding relating to this Agreement in New York, New York and further irrevocably waives any claim that New York, New York is not a convenient forum for any such suit, action or proceeding. The United Nations Convention on Contracts for the International Sale of Goods, and any successor treaties, will not govern this Agreement.
8.8 Changes to Services, Website and Terms and Conditions. User acknowledges and agrees that OTS may change, modify, amend, suspend or discontinue any aspect of the Services, including its pricing, or its websites, at any time, without notice and without liability to User or to any third party, except that any such change to prices will not affect your current term pricing. OTS reserves the right to impose limits on certain features of the Services or its websites, at any time, without notice and without liability to you or to any third party. Further, you acknowledge and agree that OTS may amend any or all of the Terms and Conditions (including fees and rules) applicable to its Service by posting same on its Website(s) at any time, at OTS’s sole discretion, without notice. Any amendment of the Terms and Conditions will be reflected on OTS’ Website(s). YOU ARE ENCOURAGED TO REVIEW THE TERMS AND CONDITIONS POSTED ON THE OTS WEBSITE(S) PERIODICALLY. CONTINUED USE OF THE SERVICES AND THE WEBSITES CONSTITUTES YOUR ACCEPTANCE OF OTS’S TERMS AND CONDITIONS, INCLUDING ANY AMENDMENTS THERETO (s), and will be applicable to all current users at the time it is posted.
8.9 Right of Refusal to Provide Service. The Services and the websites are only available to persons with the legal capacity to enter into this Agreement. OTS may, at its sole and absolute discretion, refuse to accept a person’s (or entity’s) registration, and may, at any time after accepting registration, refuse to permit a person’s (or entity’s) continuing use of the Services and the Website for any reason. In the event of such termination, no Early Termination Fees will apply.
8.10 Updates. Upon payment by you of any applicable fees, and as long as your account remains current and you continue to pay for the Services, OTS will provide you with access to new releases, enhancements, or updates to the Software, in accordance with these Terms and Conditions as it makes them available.
8.11 Security. OTS will use reasonable efforts to prevent the unauthorized disclosure or destruction of your stored information and data; however, no archival or security system is either impenetrable or infallible. Except in extraordinary circumstances, or where legally required to do so, OTS will not seek to decrypt your data, and will make reasonable efforts to preserve your data in the same format in which it was received from you. Notwithstanding the foregoing, OTS does routinely collect and analyze metadata regarding User files designated for archival using the Service, including, without limitation, header information, checksum quantities, file size, file type, and archival dates, but not data content. This information is used by OTS to gauge service levels and application performance, and, in some instances, for data recovery purposes. OTS will not, however, be responsible for any matter beyond its reasonable control, including, without limitation, unauthorized access to your information or data and/or functions provided or performed by third parties. In the event that OTS is served a subpoena or is otherwise legally compelled to provide access to your stored information, OTS will use reasonable efforts to provide you with notice of the same (as provided below) as soon as reasonably practical to enable you to take any action you deem necessary to prevent such access, all at your sole expense and without OTS’s cooperation or assistance.
You are solely responsible for the content of all data that you store or retrieve through OTS’s Services. OTS normally does not review, inspect, edit or monitor any content, data or any files stored by you or any other user of the Services. As a condition of using the Services, you represent and warrant (a) that you have sufficient rights to the content of all data and files stored by you on OTS’s servers, (b) that such content does not include any illegal or improper items, (c) that such content does not contain any pornographic or pornography-related data, (d) that such content complies in all respects with these Terms and Conditions, and (e) that your use of the Services and OTS’s Website(s) do not infringe or violate any third party’s copyright, patent, trademark, trade secret, license or other proprietary rights. Your use of the Services is subject to all applicable local, state, national and international laws and regulations. You agree not to use the Service for any illegal purposes, not to use the Service to store, retrieve, transmit or view any illegal pictures, files or information, or any material that encourages illegal conduct. You further agree not to use the Services to distribute digital content of any kind to others, or to disseminate digital content for commercial purposes.
8.12 Suitability. You also agree (a) to ensure that your computer hardware and software are sufficient to enable use of the Services, and (b) to designate manually any data and files you wished to be stored on OTS’s servers, including but not limited to any “unique” applications and data. You acknowledge that, by default, OTS only backs up data from certain popular installed applications on typical operating systems, and that it is the User’s responsibility to review and modify the files and programs selected for backup. While Oak Tree may provide you with support and recommendations regarding the selection of files and/or databases to be backed up, Oak Tree assumes no responsibility for the final selection of backed up data, and you further acknowledge that OTS may not detect all of your important and unique data, and you agree, therefore, to confirm manually all back up requests. For questions regarding storage and backup limitations, please see our FAQ section, posted on the Website at www.oaktreestorage.com.
8.13 Content and Use. You may not use the Services or the Website(s) for any illegal or improper purpose. OTS is NOT a service for storing and disseminating data to other recipients. It is simply a service for online data storage, backup, terminal server and restore functions for files and data designated by you. OTS may use automated procedures to detect unacceptable or suspicious levels of usage and may immediately disable offending User accounts, and the process of detection may vary from time to time, based on the misuse detected. OTS is not responsible for any business interruptions that may be caused due to this process.
8.14 Conduct. User is solely responsible for its conduct, and for the content of all information stored or retrieved under its User name and password. User represents, warrants and covenants that its use of the Services and the Website shall not: (1) violate any applicable local, state, national or international law, statute, ordinance, rule or regulation; (2) export or re-export the Software, Services and/or any User information outside of the jurisdiction in which User obtained it without the appropriate United States or foreign government licenses (Export controls prohibit the Software from being downloaded or exported or re-exported (i) into (or to a national or resident of) Cuba, Iran, Iraq, Libya, North Korea, Sudan, Syria or any other country to which the United States has embargoed goods from time to time; or (ii) to anyone on the United States Treasury Department’s list of Specially Designated Nations or the United States Commerce Department’s Table of Denial Orders. By downloading and/or using the Software, you are agreeing to the foregoing provisions and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list; (3) interfere with or disrupt computer networks connected to the Service or the Website, including but not limited to storing any information which contains any viruses, Trojan horses, worms, time bombs, cancelbots, or other computer programming routines that are intended to damage, detrimentally interfere with, surreptitiously intercept or expropriate any system, data or personal information; (4) impersonate any other person or entity, or make any misrepresentation as to User’s employment by or affiliation with any other person or entity; (5) forge headers or in any manner manipulate identifiers in order to disguise the origin of any User Information; (6) upload, post, transmit, publish, or distribute any material or information for which User does not have all necessary rights and licenses; (7) upload, post, transmit, publish, or distribute any material which infringes, violates, breaches or otherwise contravenes the rights of any third party, including any copyright, trademark, patent, rights of privacy or publicity or any other proprietary right; (8) interfere with or disrupt the use of the Services or the Website by any other User, nor “stalk”, threaten, or in any manner harass another User; (9) upload, post, transmit, publish, or distribute any unauthorized or unsolicited advertising, solicitations, offers for the sale of services, unsolicited communications, or offers for any “investment opportunities”; (10) upload, post, transmit, publish, or distribute any material or information which contains a computer virus, or other code, files or programs intending in any manner to disrupt or interfere with the functioning of the Services, the Website, or that of other computer systems; (11) use the Services or the Website in such a manner as to gain unauthorized entry or access to the computer systems of OTS or others; (12) upload, post, transmit, publish or distribute any material or information which constitutes or encourages conduct that would constitute a criminal offense, give rise to other liability, or otherwise violate applicable law; (13) upload, post, transmit, publish, or distribute any material or information that is unlawful, or which may potentially be perceived as being harmful, threatening, abusive, harassing, defamatory, libelous, vulgar, obscene, or racially, ethnically, or otherwise objectionable in any manner whatsoever; or (14) reproduce, copy, modify, sell, distribute or otherwise exploit for any commercial purposes the Services or the Website, or any component thereof (including, but not limited to any materials or information accessible through the Website).
8.15 Inappropriate Use. If OTS suspects that an account is being used for storage or distribution of any illegal or improper material, such as copyrighted or illicit content, or for some other improper or impermissible purpose, then OTS may take any steps it deems necessary to protect the integrity of its Services and business, including suspending your Service until the issue is resolved. Users notified of such suspicions must grant OTS access to the data in their accounts, or, at its sole discretion, OTS may suspend or cancel User’s Service. OTS, however, is not required to notify Users of suspicious activity, and may seek to obtain access to suspicious data without further notice to or consent from the User. If OTS suspects for any reason whatsoever that a User has stored data on OTS’s servers that is either illegal, in violation of these Terms and Conditions, in violation of the rights of any third party, or otherwise reasonably objectionable, then OTS may, at its sole discretion: (a) notify appropriate authorities; (b) refuse or disable User access to the Service; (c) remove or delete User data, in whole or in part, from OTS’s servers; (d) terminate the User’s account; and/or (e) take any other action with respect to the User’s data or account that OTS, in its sole discretion, deems reasonably necessary. OTS may at its sole discretion take such protective measures without further notice to or consent from the User.
8.16 Third-party sites. The Services and the Website(s) may provide links to the websites or services of others (“Third-Party Sites”). Links to such Third-Party Sites do not constitute an endorsement by OTS of such Third-Party Sites, or the products, content, materials or information presented or made available by such Third-Party Sites. User acknowledges and agrees that OTS is not responsible for any damages or losses caused or alleged to have been caused by the use of any Third-Party Sites, or from the products, content, material, services or information presented by or made available through such Third-Party Sites.
8.17 Force Majeur. Oak Tree shall not be deemed to be in breach of this Agreement if its obligations are delayed or prevented by any reason of any act of God, war, terrorism, fire, flood, natural disaster, accident, riots, acts of government, shortage of materials or supplies, failure of any transportation or communication system, non-performance of any of your agents or your third party providers (including, without limitation, the failure or performance of common carriers, interchange carriers, local exchange carriers, internet service providers, suppliers, subcontractors) or any other cause beyond its reasonable control.
8.18 Waiver. The failure of OTS to exercise or enforce any right or provision of this Agreement will not be deemed a waiver of such right or provision.
9. General
This Agreement and any supplemental agreements with respect to the Service constitute the entire understanding between Oak Tree and you with respect to subject matter hereof. Terms and conditions as set forth in any purchase order which differ from, conflict with, or are not included in this Agreement, shall not become part of this Agreement unless specifically accepted by Oak Tree in writing. you shall be responsible for and shall pay, and shall reimburse Oak Tree on request if Oak Tree is required to pay, any sales, use, value-added or other tax (excluding any tax that is based on Oak Tree’s net income), assessment, duty, tariff, or other fee or charge of any kind or nature that is levied or imposed by any governmental authority on the Service provided to you.
