StorageCraft Conditions of Use
StorageCraft Technology Corporation (“StorageCraft”) operates a number of websites for the purpose of delivering products, services, and information to current and potential customers and channel partners. These Conditions of Use (the “Conditions”) apply to your use of this and all other websites owned or operated by StorageCraft. By using a StorageCraft website or participating in services that may be offered through a StorageCraft website, you agree to these Conditions, so please read them carefully.
- Your Accounts and Passwords. Certain StorageCraft websites may require that you establish an account to use them. If you establish an account, you agree to keep your account information accurate, complete, and current as long as you continue to use it. You also agree that you are solely responsible for: (a) ensuring that only persons legally authorized by you have access to your account passwords and other credentials; (b) keeping your passwords and credentials secure; and (c) all account activity or business transacted through use of your account, including changes made to your account through use of your passwords or credentials. In using our websites, you also agree that you will not misrepresent your identity or your authority, impersonate any person, or attempt to gain access to another account without authorization. You agree that StorageCraft may assume that you have authorized anyone in possession of your passwords or credentials to use your account. If you become aware of unauthorized access to your account, passwords, or credentials, or any security breach related to your account, you agree to notify StorageCraft immediately at email@example.com If StorageCraft determines that a security breach has occurred or is likely to occur, it may suspend your account and require you to change your passwords and other credentials. You understand that you are solely responsible for remembering your passwords and other credentials, and if you lose them, you may lose access. Please keep your passwords safe and secure, and do not lose them.
- Copyright. All content on StorageCraft websites, including text, graphics, icons, button icons, photographs, video, logos, and page headers are protected by U.S. and international copyright laws, including the compilation of content on our websites. This content is the property of StorageCraft or its licensors and cannot be used, copied, disseminated, distributed, reproduced, or transferred without StorageCraft’s prior written authorization.
- Trademark. StorageCraft®, ShadowProtect®, ShadowControl®, HeadStart Restore®, and ShadowStream® are registered trademarks of StorageCraft or its licensors in the U.S. or elsewhere. Further, graphics, icons, button icons, logos, page headers, and service names appearing on StorageCraft websites are trademarks or trade dress of StorageCraft in the U.S. and other countries. StorageCraft’s trademarks and trade dress may not be used in association with any non-StorageCraft products or services, in any way that is likely to cause confusion among customers, or in any way that discredits or disparages StorageCraft or its products or services. Any trademark that appears on a StorageCraft website that is not owned by StorageCraft is the property of its owner, which may have no relationship, affiliation, or connection to StorageCraft.
- Patents. StorageCraft’s HeadStart Restore product is protected by U.S. Patent No. 8,190,574.
- Posting Content. In the event you post comments, questions, and other content on a StorageCraft website, such as the StorageCraft Forum, or use a StorageCraft website to communicate electronically with either StorageCraft or a third party, the content or communications may not: (a) threaten, libel, defame, invade privacy, or otherwise damage or injure a third party (which determination may be made by StorageCraft in its sole discretion); (b) contain malware or computer contaminants such as viruses, worms, or Trojan horses; (c) constitute “spam”, including without limitation political campaigning or commercial solicitation of any kind; (d) infringe any person or entity’s intellectual property rights; (e) be illegal or constitute a criminal act or a communication in furtherance of a criminal act; or (f) misrepresent your identity or your authority, impersonate any person or entity, or otherwise mislead as to the origin of the content or communication. You understand and agree that StorageCraft reserves the right, but not the obligation, to remove or edit any of the foregoing content. StorageCraft is not responsible for, and assumes no liability for, any content posted by you or any third party.
If you post content or submit material on or through a StorageCraft website, such as the StorageCraft Forum, and unless agreed otherwise by both of us, you grant StorageCraft a nonexclusive, fully-paid, royalty-free, perpetual, irrevocable, sublicensable, right to use, modify, create derivatives, reproduce, publish, translate, distribute, disseminate, and display such content anywhere in the world and in any media of StorageCraft’s choosing. If you submit a name in connection with such content, you grant StorageCraft the right to use the name, and do so in association with the content. In the event the content or communications you supply violate this Section or are alleged to violate this Section, you agree to indemnify and hold StorageCraft harmless for all claims resulting from the content or communications.
You agree that StorageCraft may, at any time and for any reason, terminate your access to one or more StorageCraft websites.
- Limitation on Warranties. STORAGECRAFT WEBSITES AND ALL INFORMATION AND CONTENT THEY CONTAIN, ARE PROVIDED BY STORAGECRAFT ON AN “AS IS”, “WHERE IS”, “AS AVAILABLE”, AND “WITH ALL FAULTS” BASIS. YOU AGREE THAT YOUR USE OF STORAGECRAFT WEBSITES IS AT YOUR SOLE RISK. STORAGECRAFT MAKES NO WARRANTIES, REPRESENTATIONS, OR CONDITIONS, EXPRESS OR IMPLIED, WRITTEN OR ORAL, OR OTHERWISE, REGARDING THE WEBSITES OR STORAGECRAFT PRODUCTS OR SERVICES, EXCEPT AS EXPRESSLY STATED BY STORAGECRAFT IN WRITING. TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, STORAGECRAFT DISCLAIMS ALL WARRANTIES AND CONDITIONS, WHETHER EXPRESS, IMPLIED, OR STATUTORY, INCLUDING WITHOUT LIMITATION ANY (IF ANY) WARRANTIES OR CONDITIONS OF, OR RELATED TO: MERCHANTABILITY, DURABILITY, FITNESS FOR A PARTICULAR PURPOSE, LACK OF VIRUSES, NONINFRINGEMENT, UP-TIME, DOWN-TIME, LACK OF SERVICE INTERRUPTION, ACCURACY OR COMPLETENESS, WORKMANLIKE EFFORT, AND LACK OF NEGLIGENCE. STORAGECRAFT MAKES NO WARRANTY THAT ANY STORAGECRAFT WEBSITE WILL MEET YOUR REQUIREMENTS; THAT YOUR USE OF ANY STORAGECRAFT WEBSITE WILL BE TIMELY, UNINTERRUPTED, ERROR-FREE, OR SECURE; OR THAT ANY DEFECTS OR ERRORS IN ANY STORAGECRAFT WEBSITE WILL BE CORRECTED. YOU UNDERSTAND THAT USE OF ANY STORAGECRAFT WEBSITE AND ENGAGING IN ELECTRONIC COMMUNICATION ON OR THROUGH A STORAGECRAFT WEBSITE INVOLVE THE TRANSFER OF DATA OVER THE INTERNET, THAT STORAGECRAFT DOES NOT OPERATE OR CONTROL THE INTERNET, AND THAT SUCH DATA MAY BE SUBJECT TO MALWARE AND COMPUTER CONTAMINANTS SUCH AS VIRUSES, WORMS, AND TROJAN HORSES, AS WELL AS ATTEMPTS BY UNAUTHORIZED USERS, SUCH AS HACKERS, TO ACCESS OR DAMAGE YOUR DATA. YOU UNDERSTAND THAT STORAGECRAFT IS NEITHER LIABLE NOR RESPONSIBLE FOR SUCH ACTIVITIES. NO AGREEMENTS VARYING OR EXTENDING THE FOREGOING WARRANTIES OR LIMITATIONS WILL BE BINDING UNLESS IN WRITING AND ACCEPTED BY STORAGECRAFT. BECAUSE SOME JURISDICTIONS DO NOT PERMIT LIMITATIONS ON IMPLIED WARRANTIES, SOME OR ALL OF THE ABOVE DISCLAIMERS, EXCLUSIONS, OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MIGHT HAVE ADDITIONAL RIGHTS.
- Limitations on Liability. YOU UNDERSTAND AND AGREE THAT STORAGECRAFT, ITS LICENSORS, AND AFFILIATES ARE NOT LIABLE TO YOU FOR ANY: (A) CONSEQUENTIAL, INDIRECT, INCIDENTAL, EXEMPLARY, OR SPECIAL DAMAGES; (B) DAMAGES FOR LOSS OF PROFITS, REVENUES, OR USE; OR (C) BUSINESS INTERRUPTION. THESE LIMITATIONS APPLY EVEN IN THE EVENT OF FAULT, TORT, NEGLIGENCE, MISREPRESENTATION, OR STRICT OR PRODUCT LIABILITY. YOU ASSUME ALL RISKS ASSOCIATED WITH USE OF STORAGECRAFT WEBSITES AND IN ENGAGING IN ELECTRONIC COMMUNICATIONS WITH OR THROUGH STORAGECRAFT. THE LIMITATIONS IMPOSED BY THIS SECTION AND THE REMEDIES AVAILABLE REFLECT THE ALLOCATION OF RISK BETWEEN US AND THEY ARE A MATERIAL AND ESSENTIAL FACTOR IN STORAGECRAFT'S AGREEMENT TO PERMIT YOU TO USE STORAGECRAFT WEBSITES. YOU RELEASE STORAGECRAFT FROM ALL LIABILITY IN EXCESS OF THE LIABILITIES THAT ARE LIMITED BY THIS SECTION, INCLUDING WITHOUT LIMITATION ANY CLAIM FOR INDEMNIFICATION OR CONTRIBUTION (WHETHER ARISING UNDER STATUTORY OR COMMON LAW). BECAUSE SOME JURISDICTIONS DO NOT PERMIT THE EXCLUSION OR LIMITATION OF LIABILITY FOR CERTAIN DAMAGES, SUCH AS INCIDENTAL OR CONSEQUENTIAL DAMAGES, SOME OF THE LIMITATIONS IN THIS SECTION MAY NOT APPLY TO YOU.
- Notices. If you are giving StorageCraft notice as required or permitted under these Conditions, it must be in writing and: (a) personally delivered or sent by a reputable international overnight commercial courier service (such as Federal Express) to StorageCraft at: StorageCraft Technology Corp., Attn: Website Terms and Conditions, 11850 Election Rd, Suite 100, Draper, UT 84020, USA, with a copy to StorageCraft Technology Corp., Attn: Legal, P.O. Box 1149, Riverton, UT 84065, USA; or (b) by email to firstname.lastname@example.org, with a copy to email@example.com. If StorageCraft is giving you notice as required or permitted under these Conditions, it must be in writing and: (a) sent by email to the email address you provided to us for that purpose; (b) sent by U.S. mail or a reputable international overnight commercial courier service (such as Federal Express), addressed to you at an address you provided to us for that purpose; (c) posted in or delivered through a StorageCraft website or portal; or (d) delivered by any other means where it can be established that you received the notice.
- Governing Law, Venue, Provisional Relief. These Conditions shall be governed and construed exclusively in accordance with the laws of the State of Utah, USA, without application of any choice-of-law or conflict-of-law principles, rules, or provision that would result in the application of the laws of any jurisdiction other than Utah, and you irrevocably submit to the personal jurisdiction of the state or federal courts located in Salt Lake County, Utah. Any action relating to or arising from these Conditions or use of a StorageCraft website, including actions for provisional relief, including but not limited to a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure, shall be brought exclusively in Salt Lake County, Utah, USA. In the event an action is initiated, you agree to accept service of process in the manner provided for “notice” in these Conditions.
- Dispute Resolution. At the election of either you or StorageCraft by written notice sent prior to the filing of a responsive pleading, any dispute, controversy, or claim arising out of, relating to, or in connection with the following shall be submitted for final resolution by arbitration administered by the American Arbitration Association (the “AAA”), or in the event you are headquartered outside the United States, by the International Centre for Dispute Resolution (“ICDR”): your use of a StorageCraft website, including without limitation any alleged deficiency or defect; the existence or breach of a contractual, statutory, or common-law warranty; the terms and obligations of these Conditions; and the Conditions’ validity or enforceability, including without limitation any claim that all or any part of the Conditions are void, voidable, unconscionable, or unenforceable (collectively, “Arbitral Dispute”). The AAA and ICDR are referred to as “Arbitral Bodies”. You expressly waive any right to a trial by jury regarding any Arbitral Dispute. Notwithstanding the foregoing, any claim for infringement or violation of StorageCraft copyright, trademark, or other intellectual property rights is not an Arbitral Dispute, but shall be brought before a court of competent jurisdiction in Salt Lake County, State of Utah, USA. In the event of an Arbitral Dispute, the arbitration shall be conducted in accordance with the AAA Commercial Arbitration Rules in effect at the time of the arbitration, excepting any rules pertaining to class arbitrations, or if before the ICDR, according to its Commercial Rules, excepting any rules pertaining to class arbitrations (collectively, the “Rules”). We both agree and intend that any arbitration between us shall involve only the dispute between us and no other, even identical, dispute between one of us and any third party, or between or among third parties. Class arbitration shall not be permitted.
If the Arbitral Dispute involves a claim for damages of $50,000 U.S.D. or less, the arbitration shall be conducted by a single arbitrator selected in accordance with the Rules. All other Arbitral Disputes shall be conducted by three arbitrators selected in accordance with the Rules. Any arbitrator must be fluent in the English language and a licensed attorney with experience in e-commerce transactions. The place of arbitration shall be Salt Lake County, State of Utah, U.S.A., unless the parties agree otherwise in writing. The arbitration shall be conducted in the English language. Any award rendered by the arbitrator(s) must be a reasoned award that: fully sets forth findings of fact from the evidence presented; applies the findings of fact to the law of the case; fully sets forth conclusions of law based upon the parties' respective legal theories; explains which legal theories were followed and why; and, if damages, costs, and/or fees are awarded, specifies the calculations of the types of damages, costs, and/or fees awarded as to each party. Any award is final and binding on the parties and may be challenged in a court of competent jurisdiction only upon those grounds allowed under the Utah Uniform Arbitration Act, Utah Code Ann. section 78B-11-101 et seq. In the absence of challenge, judgment on the award may be entered in any court of competent jurisdiction. Without limiting the authority conferred on the arbitrator(s) by these Conditions and the Rules, the arbitrator(s) shall have the authority to exercise equitable principles and award equitable remedies. By agreeing to arbitration, the parties do not intend to deprive any court of competent jurisdiction in Salt Lake County, State of Utah, U.S.A., of its ability to issue any form of provisional remedy, including but not limited to a temporary restraining order, preliminary injunction, attachment in aid of arbitration, or order for any interim or conservatory measure. A request for such provisional remedy or interim or conservatory measure by a party to a court shall not be deemed a waiver of an agreement to arbitrate.
If an action, arbitration, or proceeding is brought pertaining to any provision of these Conditions or their breach, enforcement, or interpretation, in addition to any damages which may be claimed, the prevailing party shall be awarded its costs and reasonable attorneys' fees incurred in connection with such action, arbitration, or proceeding.
- Severability. Any term or provision of these Conditions that is held to be illegal or unenforceable shall, if possible, be interpreted so as to be construed as valid, but in any event the validity or enforceability of the remainder of these Conditions shall not be affected, provided that the general purposes of these Conditions are still reasonably capable of being accomplished.
- Waiver. A waiver of any of the terms of these Conditions in one or more instances shall not be deemed or construed to be a general waiver of such terms or conditions or a waiver of any subsequent breach.
- Changes to the Conditions. These Conditions supersede all prior conditions of use for StorageCraft websites. You understand and agree that StorageCraft may modify or amend these Conditions at any time and that each such modification will be effective upon StorageCraft’s posting of the modified Conditions on StorageCraft’s website(s). Your continued use of a StorageCraft website following the modification or amendment of the Conditions constitutes your agreement and consent to be bound by those modified terms. Please stay informed of any changes to these Conditions by reviewing the most current version on the StorageCraft website(s).
Last Revision: December 17, 2012.