TERMS

This Service Level Agreement (“SLA”) between Zoolz. (“Zoolz”) and you (“you”) sets forth the service level terms and conditions with respect to the cloud-based automated data backup services offered by Zoolz, currently via www.zoolz.com (the “Cloud Backup Services”).

 

Introduction

 

Zoolz is dedicated to making the Cloud Backup Services easy to access and to use and to providing you with the highest standards of service. This SLA formally sets forth Zoolz commitment to ensure 99.9% uptime of the Cloud Backup Services.

 

Availability

 

For as long as you are subscribed to the Cloud Backup Services in accordance with the Terms of Use, Zoolz will ensure that the Cloud Backup Services will be available and operational at an annual Uptime Percentage of at least 99.9%, as measured over any calendar month (the “Service Level Goal”). If Zoolz fails to meet the Uptime Percentage in any calendar month, and as long as you have met your obligations under the Terms of Use, you may notify Zoolz of such failure by sending an email to Zoolz at support@Zoolz.com, and Zoolz will provide you with a Service Credit. The Service Credit is your sole and exclusive remedy for a failure by Zoolz to meet the Service Level Goal.

 

SLA Exclusions

 

The SLA does not apply to any services that expressly exclude this SLA (as stated in the documentation for such services) or to Downtime resulting from:

 

Amazon Web Services outage or other causes beyond Zoolz reasonable control, including force majeure events; or

Your or any third party’s equipment, services, actions or lack thereof.

Zoolz scheduled maintenance and version upgrades.

 

Definitions

 

“Downtime” means the total number of minutes in a calendar month during which the Cloud Backup Services are unavailable or inoperable.

 

“Monthly Uptime Percentage” means the total number of minutes in a calendar month minus Downtime suffered in a calendar month, divided by the total number of minutes in a calendar month.

 

“Service Credit” means a credit calculated as the difference between the Service Level Goal and the Monthly Uptime Percentage, multiplied by the monthly fee payable by you to Zoolz for the applicable month in accordance with the Terms of Use.

General

 

This End User License Agreement, including the Privacy Policy, Terms of Service, and Frequently Asked Questions (FAQs), which are incorporated herein by this reference and which you can access by clicking on each of the hyperlinks above (collectively, the “Terms”), are a binding contract between you and Zoolz. (“Zoolz”). You may print the foregoing documents using the print function in your browser. You understand and agree that by installing, accessing, or using the software, products, services, applications and associated documentation and Enhancements (collectively, the “Zoolz Products”), you will be bound by these Terms. If you agree to these Terms on behalf of a business or organization, you represent and warrant that you have the authority to bind that business or organization to these Terms and your agreement to these Terms will be treated as the agreement of the business or organization. In that event, “you” and “your” will refer to and apply to the user of the Zoolz Products or that business or organization, as required by the context. If you do not agree with these Terms, Zoolz is not willing to license to you and you may not use the Zoolz Products.

 

Your License

 

Zoolz Products are licensed and not sold to you. During the term of your subscription, Zoolz grants to you a revocable, limited, non-transferable, non-exclusive license to use Zoolz Products, solely in connection with the backup of your data. Except for the limited license granted in these Terms, Zoolz and its licensors retain all right, title and interest in and to the Zoolz Products, all copies thereof, and all proprietary rights therein, including copyrights, patent, trademark and trade secret rights. You may not copy or distribute Zoolz Products, except to the extent that copying is necessary to use Zoolz Products for the purposes set forth herein. You may not reverse engineer, decompile, disassemble, modify, or create derivative works of Zoolz Products. You may not alter or modify any disabling mechanism which may be included in Zoolz Products. You may not assign, sublicense, rent, timeshare, loan, lease, or otherwise transfer Zoolz Products, or directly or indirectly permit any third party to copy Zoolz Products. You may not remove any proprietary notices (e.g., copyright and trademark notices) from Zoolz Products. You must reproduce the copyright and all other proprietary notices displayed on Zoolz Products and on each permitted backup or archival copy. All use of Zoolz Products shall be in accordance with these Terms and its then-current documentation. You shall be solely responsible for ensuring that your use of Zoolz Products is in compliance with all applicable foreign, federal, state and local laws, rules and regulations.

 

How It Works

 

Zoolz Products save a copy of each file that is automatically selected for backup and other files you designate for backup (your “Backed-up Data”) to a server operated by Amazon. Zoolz Products automatically scan for changes or additions to the Backed-up Data and then periodically re-save a copy or a part of a modified file or create a copy of a newly designated file. For a complete list of the files Zoolz is backing-up for you, please refer to the Zoolz web console. You can check whether Zoolz is backing-up specific files by going to Zoolz Timeline located in your Computer, Web console, or from your mobile. If you are unable to locate your file, Zoolz is not backing-up that file. Your Backed-up Data may not be available or restorable if: (i) Zoolz has not completed copying your selected files or changed files; (ii) for files, folders, or disk drives that are not automatically backed-up, you do not manually select them for backup, or you unselect a file for backup; (iii) you delete a person from your Zoolz account; (iv) you move a file to a location on your computer that is not automatically scanned to select files for backup or you upgrade your operating system resulting in changes to your file mapping; (v) your computer is unable to access the internet or to Amazon s3 Storage; (vi) you fail to follow Zoolz technical requirements, including upgrading the version of your Zoolz Products as required; or (vii) you terminate your license or fail to renew your subscription to Zoolz Products. For additional information about the status of your Backed-up Data Frequently Asked Questions (FAQs)

 

Enhancements and Feedback

 

Enhancements. Zoolz may (i) automatically update Zoolz Products installed on your computer without your prior notice, (ii) upgrade, enhance, change and modify (collectively, the “Enhancements”) Zoolz Products, or (iii) discontinue or retire Zoolz Products or any aspect or feature of Zoolz Products, including the types of files and data that are backed-up (not every file on your computer is backed-up) or the availability of Zoolz Products on any particular device or communications service at any time and from time-to-time in its sole discretion. Any Enhancements made available to you will be subject to these Terms. Zoolz will use reasonable efforts to provide notice of material changes to the Zoolz Products or changes to these Terms by posting them to Product Agreement. It is your responsibility to periodically check Zoolz website to inform yourself of any such modifications. Changes to these Terms, which may be made in Zoolz sole and exclusive discretion, will be effective upon acceptance of these Terms (as described herein) for new subscriptions and effective for all existing users thirty (30) calendar days after the posting of the new Terms on Zoolz website at Product Agreement You agree to be bound to these Terms, as modified. If you do not agree to the modified Terms you are not permitted to use Zoolz Products and must terminate your subscription immediately.

 

Feedback

 

You may provide feedback to Zoolz with respect to the Zoolz Products. Zoolz may use feedback for any purpose without obligation of any kind. To the extent a license is required under your intellectual property rights to make use of the feedback, you hereby grant Zoolz an irrevocable, non-exclusive, perpetual, royalty-free license to use the feedback in connection with Zoolz business, including enhancement of the Zoolz Products.

 

Term

 

Term and Termination. These Terms and your license to the Zoolz Products will commence at the time and on the day you install, access, or use Zoolz Products, whichever is earlier. These Terms, your license and your subscription to the Zoolz Products will automatically terminate or expire upon the earlier of (i) non-renewal, cancellation, or expiration of your subscription or your failure to pay invoices when due, (ii) Zoolz discontinuance of the Zoolz Products, or (iii) failure to comply with these Terms. If any third party makes an intellectual property infringement claim relating to the Zoolz Products, Zoolz reserves the right to immediately terminate your subscription to the affected Zoolz Products. Zoolz MAY, IN ITS SOLE DISCRETION, DENY USE OF AND ACCESS TO ALL OR ANY PORTION OF THE Zoolz PRODUCTS, INCLUDING SUSPENDING OR TERMINATING YOUR LICENSE AND ACCOUNT WITH Zoolz IF YOU ARE USING THE Zoolz PRODUCTS IN A MANNER NOT INTENDED OR IN VIOLATION OF LAW.

 

Effect of Non-Renewal or Termination

 

Upon any non-renewal, termination, or expiration of your subscription to the Zoolz Products (i) the license granted herein will automatically and immediately terminate and you will have no further right to possess or use the Zoolz Products, (ii) the Zoolz Products may be disabled by Zoolz without notice to you, and (iii) you will no longer have the right to access or retrieve your Backed-up Data. You acknowledge and agree that Zoolz policy is to automatically delete all of your Backed-up Data upon non-renewal, termination, or expiration of your subscription to Zoolz Products and that it is solely your responsibility to seek another source for your backup needs.

 

Trial and Evaluation Licenses

 

You may try the Zoolz Products prior to paying for a full subscription by licensing a trial, evaluation, or other limited versions (an “Evaluation Version”). Your license to an Evaluation Version of the Zoolz Products will automatically terminate upon the earlier of (i) the expiration or cancellation of the evaluation period, (ii) when the Zoolz Product is no longer made available, (iii) when Zoolz cancels your license to the Evaluation Version, or (iv) when your computer has not accessed the Zoolz server for more than thirty (30) calendar days. You acknowledge and agree that Zoolz policy is to automatically delete all of your Backed-up Data upon termination or expiration of any Evaluation Version and that it is solely your responsibility to seek another source for your backup needs.

 

Lifetime Licenses

 

Your license to a Lifetime Plan of the Zoolz Products will automatically terminate upon the earlier of (i) when the Zoolz Product is no longer made available, (ii) when Zoolz cancels your license to the Lifetime Plan, or (iii) when your computer has not accessed the Zoolz server for more than ninety (90) calendar days. You acknowledge and agree that Zoolz policy is to automatically delete all of your Backed-up Data upon meeting any of the above points and that it is solely your responsibility to seek another source for your backup needs.

 

Disclaimer of Warranties; Indemnification; Limitation of Liability

 

Zoolz Products. THE Zoolz PRODUCTS MAY CONTAIN OR Zoolz MAY PROVIDE TO YOU THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING, OR YOU MAY OBTAIN THIRD PARTY HARDWARE, PRODUCTS, SOFTWARE, OR PROGRAMMING FROM THIRD PARTIES DIRECTLY, (“THIRD PARTY COMPONENTS”). THE Zoolz PRODUCTS, ALL THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE ARE PROVIDED “AS IS,” “WHERE IS,” “AS AVAILABLE,” “WITH ALL FAULTS” AND, TO THE FULLEST EXTENT PERMITTED BY LAW, WITHOUT WARRANTY OF ANY KIND. Zoolz AND ITS LICENSORS DISCLAIM ALL WARRANTIES WITH RESPECT TO THE Zoolz PRODUCTS, THE THIRD PARTY PRODUCTS AND ALL BETA SOFTWARE, INCLUDING THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT AND TITLE, AND ANY WARRANTIES REGARDING QUIET ENJOYMENT, QUALITY OF INFORMATION, SECURITY, RELIABILITY, TIMELINESS, AVAILABILITY OF BACKED-UP DATA AND PERFORMANCE OF THE Zoolz PRODUCTS. Zoolz DOES NOT WARRANT THAT THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL MEET YOUR REQUIREMENTS, OR THAT THE OPERATION OF THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE, OR THAT DEFECTS IN THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE WILL BE CORRECTED, OR THAT ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE. YOU UNDERSTAND AND AGREE THAT YOUR INSTALLATION, USE AND ACCESS OF THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS AND ALL BETA SOFTWARE IS AT YOUR SOLE DISCRETION AND RISK AND THAT YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGES TO YOUR COMPUTER, SOFTWARE AND THE LOSS OF BACKED-UP DATA THAT RESULTS FROM THE USE THEREOF. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY Zoolz SHALL CREATE ANY ADDITIONAL Zoolz WARRANTIES OR IN ANY WAY INCREASE THE SCOPE OF Zoolz’S OBLIGATIONS HEREUNDER. YOU HEREBY WAIVE ANY AND ALL CLAIMS, NOW KNOWN OR LATER DISCOVERED, THAT YOU MAY HAVE AGAINST Zoolz AND ITS AFFILIATES, SUPPLIERS AND LICENSORS ARISING OUT OF YOUR USE OF THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS AND BETA SOFTWARE. THE Zoolz PRODUCTS MAY BE USED TO ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT Zoolz DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT (I) VIRUSES, WORMS, TROJAN HORSES, AND OTHER UNDESIRABLE DATA, OR SOFTWARE, OR (II) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR DATA, WEBSITES, COMPUTERS, OR NETWORKS. Zoolz SHALL NOT BE RESPONSIBLE FOR SUCH ACTIVITIES. YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF YOUR DATA AND SYSTEMS.

 

Beta Applications

 

Zoolz may designate certain Enhancements and new releases of the Zoolz Products as “Beta Software.” Beta Software is not ready and is not intended for use in a production environment. At this early stage of development, operation of the Beta Software may be unpredictable and lead to erroneous results. You acknowledge and agree that (i) the Beta Software is experimental in nature and has not been fully tested, (ii) the Beta Software may not meet your requirements or perform as intended, (iii) use of the Beta Software may not be uninterrupted, error free, or free of faults, (iv) your use of the Beta Software is for the sole purpose of evaluating and testing the product and providing feedback to Zoolz, and (v) you shall inform your employees, staff members and other users regarding the nature of the Beta Software. Your use of the Beta Software is and shall be subject to these Terms.

 

Indemnification; Limitation of Liability

 

YOU ARE SOLELY RESPONSIBLE AND LIABLE FOR YOUR CONDUCT, YOUR DATA, AND YOUR BACKED-UP DATA RELATED TO THE Zoolz PRODUCTS. YOU AGREE TO INDEMNIFY, DEFEND AND HOLD Zoolz, AND ITS OFFICERS, DIRECTORS, SHAREHOLDERS, AFFILIATES, SUPPLIERS AND LICENSORS HARMLESS FROM AND AGAINST ANY AND ALL LOSS, COST, DAMAGE, LIABILITY AND EXPENSE (INCLUDING ATTORNEYS’ FEES, EXPERT FEES AND OUT-OF-POCKET EXPENSES) ARISING OUT OF, RESULTING FROM, OR IN CONNECTION WITH YOUR BREACH OF THESE TERMS, YOUR USE OF THE Zoolz PRODUCTS, OR YOUR BACKED-UP DATA. TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT SHALL Zoolz OR ITS AFFILIATES, SUPPLIERS, OR LICENSORS BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE SERVICES OR DATA, OR ANY DIRECT, CONSEQUENTIAL, SPECIAL, INCIDENTAL, PUNITIVE, INDIRECT, EXEMPLARY, OR ANY OTHER DAMAGES, INCLUDING DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA AND BACKED-UP DATA, BUSINESS INTERRUPTION, OR LOST REVENUES, ARISING OUT OF YOUR USE OR INABILITY TO USE THE Zoolz PRODUCTS, THIRD PARTY COMPONENTS, OR BETA SOFTWARE, OR YOUR USE OF DATA OR FILES STORED THEREIN, EVEN IF Zoolz HAS BEEN ADVISED ABOUT THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE OR OTHERWISE)). IN ANY CASE AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF Zoolz AND ITS AFFILIATES, SUPPLIERS AND LICENSORS FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER SUCH DAMAGES ARISE IN CONTRACT, TORT (INCLUDING NEGLIGENCE) OR OTHERWISE) SHALL BE LIMITED TO THE LICENSE FEES PAID BY YOU TO Zoolz IN THE 30 CALENDAR DAYS PRIOR TO THE DAMAGES ARISING. IF THE Zoolz PRODUCTS ARE PROVIDED TO YOU WITHOUT CHARGE, THEN Zoolz SHALL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING TERMS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT SUCH LIMITATION OF LIABILITY IS AN ESSENTIAL PART OF THIS AGREEMENT AND IS AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE Zoolz PRODUCTS. Some jurisdictions do not allow the exclusion of incidental or consequential damages, or the limitation on how long an implied warranty lasts, so some of the foregoing terms may not apply to you.

 

Governing Law and Arbitration

 

These