ExaVault Terms of Service

Last Updated: March 10, 2022

These Terms of Service set forth the terms and conditions that apply to your use of the ExaVault platform, including evbackup.com, exavault.com, and any products, applications, websites, software, API, and services ("Platform"). The Platform is operated and offered by ExaVault, LLC (“ExaVault”, “we”, or “us”).

If you are using the Platform on behalf of an organization, you are agreeing to these Terms of Service for that organization and have the authority to bind that organization to these Terms of Service (in which event, "you" and "your" will refer to that organization) unless that organization has a separate paid contract in effect with us, in which event the terms of that contract will govern your use of the Platform, including all users on your account as well.

1. ExaVault Accounts

All of your registration, contact, and billing information must be correct and current. You are solely responsible for keeping such information correct and current.

You are the only person allowed to access and use the username and password associated with your ExaVault account. You agree not to allow anyone else to use your account or password, and to take reasonable steps to prevent unauthorized persons from learning your password and API keys. Administrators may create separate user accounts within each ExaVault subscription to provide other people access. You shall notify us immediately of any unauthorized use of or activity on your account or of any other breach of security relating to the Platform that is known or suspected by you.

You affirm that you and any and all users on your account are either 18 years of age or older, and are fully able and competent to enter into and abide by the terms, conditions, obligations, affirmations, representations, and warranties set forth in these Terms of Service.

For security purposes, we only provide customer support to the people who are listed as administrators on the account.

2. Billing

The main method of payment accepted for paid accounts is placing a credit card number or linked PayPal account on file. Currently, we accept VISA, Mastercard, American Express, Discover, and PayPal. You agree to pay all charges in accordance with any cardmember agreement governing the use of your credit card.

The following additional payment methods are supported if you are pre-paying in advance for 12 months of service:

• Mailed Check (US Dollars only)
• ACH transfer (US Dollars only)
• SEPA transfer (Euro only)
• FPS (UK/GB Pound Sterling only)
• Bitcoin

ExaVault reserves the right to change the price or features of all services upon 30 days notice. Such notice will be provided by email and/or through the Platform. If such a change takes place and you choose not to discontinue or downgrade your account, you will be responsible for the payment of your account at the new rate.

All invoices are due net 30, except for credit card payments, which are due upon receipt. Failure to pay any charges may results in the suspension or cancellation of your account.

Invoices are sent to the email on file.

Account prices are billed exclusive of all taxes, levies, or duties imposed by taxing authorities, and you shall be responsible for any such tax, levy, or duty associated with your use of the Platform.

ExaVault is required to collect sales tax in certain USA states that tax the type of services we provide and where we also meet certain sales thresholds or have a physical presence. Currently this includes only the following state(s): Pennsylvania. This list may change as ExaVault grows and gains additional sales tax nexus, or if states change their laws that determine nexus. In the wake of the Wayfair Supreme Court decision, we expect several more states to expand their sales tax nexus definitions. If your primary billing address is in a state where ExaVault is required to collect sales tax, we will add the appropriate sales tax to your invoice and collect sales tax.

Customers on certain plans who pay annually may request ExaVault to submit invoices via a third party vendor. Each such request will be considered on a case-by-case basis, and ExaVault may decline to use, or stop using, any such a third party vendor for any reason at any time. You will be responsible for any fees or expenses incurred by ExaVault in connection with such a third party vendor, and ExaVault may invoice you or use any payment method on file to recoup such fees and/or expenses. Additionally, such a third party vendor's terms and conditions shall in no way supercede these Terms of Service.

If you are on a free trial, then at the end of the trial period, if you previously provided your credit card information, you will be automatically subscribed. We will bill your credit card for the service plan you selected at registration.

3. Auto-Renewal

Accounts are billed in advance for the selected term and subscriptions will automatically renew until they are cancelled. 

For customers on a monthly term:

Accounts on monthly terms will be charged on a calendar monthly basis or every 30 days, starting with the first day of paid service (“Platform Date”). The charges will be for the monthly fee for the upcoming Usage Period (as defined below) and any Usage charges and/or any increase in the number of users (as defined below) from the previous Usage Period beyond what was included in your agreement. Invoices are automatically charged to the payment method on file.

For customers on an annual term:

Accounts on annual terms will be sent an invoice for the annual fee once every 360 days, starting with the first day of paid service (“Platform Date”). Invoices could be sent up to 30 days in advance.  If there are any Usage Charges for a Usage Period (as defined below), or an increase in the number of users (as defined below) beyond what is included in your agreement, an invoice will be sent at the end of that Usage Period for the Usage and/or additional users. All invoices are due upon receipt, and will be automatically charged if there is a payment method on file.

4. Usage & User Calculation

Usage is calculated for each “Usage Period” that your account is open.  A Usage Period is calculated on a 30-day or calendar month basis. If your account is billed monthly, your Usage Period will coincide with your monthly billing term. If your account is billed annually, we divide your annual billing term into twelve Usage Periods. If your account is billed on some other interval, we will divide your billing term into Usage Periods.

For each Usage Period, we will calculate a single sum called “Usage” that represents your total usage of the Platform. This “Usage” number is the sum of your “Storage Usage” and your “Transfer Usage.”

Each account comes with a generous amount of Usage included for every Usage Period, determined by your plan. Should the Usage in any Usage Period exceed the included amount, then any excess Usage may either be billed at a low price determined by your plan or agreement or capped to limit further Usage.

Invoices for Usage are issued immediately at the end of each Usage Period and are due upon receipt, regardless of whether your account is otherwise prepaid for a longer term.

Each Usage Period is evaluated independently, and unused usage does not “rollover” from one Usage Period to the next.

For billing purposes, your user count is simply the highest number of users reached at any point during the Usage Period.

5. API Calls

The application-programming interface ("API") is used by you to access ExaVault's services and features. An API call ("API Call") is any request sent to ExaVault's servers.  For purposes of this Terms of Service, a transaction (“Transaction”) is equivalent to an API Call.

Each ExaVault account comes with a generous amount of daily API Calls. If you exceed the daily API Call limit for your account during any Usage period, you may be required to upgrade your plan.

6. Cancellation and Refund Policy

You may cancel your account at any time. If you submit a termination request it MUST be submitted in writing, either directly via the ‘Request Cancellation’ feature of our Service, or via electronic mail sent to ExaVault’s support department (support@exavault.com) from the primary address on file for the account. For security purposes, we do NOT accept cancellation notices via phone. Upon cancellation, your data will be removed from the system, and there is no mechanism for restoring data once it is removed from the system.

If you are a new customer and cancel your account within thirty (30) days of initiating service with ExaVault, you are entitled to a full refund of all monies paid to ExaVault, less any overages or excess Usage (to which you remain responsible to pay). Please request a refund when cancelling in order for this to be processed simultaneously.

Refunds for any reason will not be granted if they are requested more than 30 days after account cancellation.

No refund will be given in any instance if ExaVault determines, in its sole and reasonable discretion, that you or any user on your account breached any part of these Terms of Service.

7. Limitation of Liability

TO THE MAXIMUM EXTENT PERMITTED BY LAW, UNDER NO CIRCUMSTANCES SHALL EXAVAULT OR ITS AGENTS BE LIABLE FOR: (1) ANY DIRECT, INDIRECT, PUNITIVE, INCIDENTAL, SPECIAL, OR CONSEQUENTIAL DAMAGES, INCLUDING BUT NOT LIMITED TO THOSE THAT RESULT FROM THE USE OF, OR INABILITY TO USE THE SITE AND/OR SERVICE, INCLUDING ANY HARDWARE. THIS LIMITATION APPLIES WHETHER THE ALLEGED LIABILITY IS BASED ON CONTRACT, TORT, NEGLIGENCE, STRICT LIABILITY, OR ANY OTHER BASIS, EVEN IF EXAVAULT HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGE; AND/OR (2) ANY CLAIM ATTRIBUTABLE TO ERRORS, OMISSIONS OR OTHER INACCURACIES OF THE SITE, SERVICE, OR HARDWARE. IN NO EVENT SHALL EXAVAULT’S AGGREGATE LIABILITY EXCEED THE FEES (EXCLUDING USAGE CHARGES) PAID BY YOU TO EXAVAULT IN THE PAST YEAR. FOR CLARITY, “PLATFORM” INCLUDES ANY CODE EXAMPLES CREATED OR PROVIDED BY EXAVAULT, AS WELL ANY THIRD PARTY INTEGRATIONS WITH EXAVAULT.

8. Disclaimer of Warranties

The Platform is provided on an "AS-IS, AS-AVAILABLE" basis. ExaVault does not warrant that the Platform will be uninterrupted or error-free or that defects in it will be corrected. Use, including data storage and transfer, is at your own risk.

TO THE MAXIMUM EXTENT PERMITTED BY LAW, ALL MATERIALS, INFORMATION, SOFTWARE, PRODUCTS, HARDWARE, AND SERVICES INCLUDED IN OR AVAILABLE THROUGH THE SITE AND SERVICE ARE PROVIDED "AS IS" AND "AS AVAILABLE" FOR YOUR USE. THE SITE AND SERVICE ARE PROVIDED WITHOUT WARRANTIES OF ANY KIND, EITHER EXPRESS OR IMPLIED, INCLUDING, BUT NOT LIMITED TO, IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, OR NONINFRINGEMENT. EXAVAULT AND ITS AGENTS DO NOT WARRANT THAT THE SITE OR SERVICE IS ACCURATE, RELIABLE OR CORRECT; THAT THE SITE OR SERVICE WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION; THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED; OR THAT THE SITE OR SERVICE IS FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOUR USE OF THE SITE OR SERVICE IS SOLELY AT YOUR RISK.

9. Acceptable Use

You are responsible for your own communications and for any consequences thereof. You will use the Platform in compliance with all applicable local, state, national, and international laws, rules, and regulations, including any laws regarding the transmission of technical data exported to or from your country of residence.

You shall not, shall not agree to, and shall not authorize or encourage any third party to: (i) use the Platform to upload, transmit or otherwise distribute any content that is unlawful, defamatory, harassing, abusive, fraudulent, obscene, contains viruses or other malicious code, or is otherwise objectionable as reasonably determined by ExaVault; (ii) use the Platform to upload, transmit or otherwise distribute content that infringes upon another party's intellectual property rights or other proprietary, contractual or fiduciary rights or obligations; (iii) prevent or hinder other authorized individuals or entities from using the Platform; (iv) use the Platform to invade the personal privacy of other people (e.g. stalking or harassment); (v) use the Platform to store personal health information that is regulated by The HIPAA Privacy Rule unless you've also entered into a Business Associate Agreement with ExaVault; (vi) use the Platform to transmit or store personal information about individuals residing in the European Economic Area unless you have signed a data processing agreement with ExaVault; (vii) use the Platform for any fraudulent or inappropriate purpose; and/or, (viii) use the Platform in any manner ExaVault determines to be detrimental to the Platform, users of the Platform, the public, and/or ExaVault.

You will not use any robot, spider, other automated device, or software process to monitor, post to, or copy any content from the Platform, except through APIs explicitly made available by ExaVault. You may use automated means to connect to Platform’s published API, to its FTP service, or to its SFTP service. Without limiting anything in this Terms of Service, ExaVault may terminate your account if, in its sole opinion, your usage of the Platform consumes excessive system resources.

Violation of any of the foregoing or any other breach of these Terms of Service may result in immediate revocation of your account(s), and may subject you to state and federal penalties and other legal consequences. ExaVault reserves the right at all times to remove or refuse to distribute any content on the Platform. ExaVault, also reserves the right to access, read, preserve, and disclose any information as it reasonably believes is necessary to: (a) satisfy any applicable law, regulation, legal process or governmental request; (b) enforce these Terms of Service, including investigation of potential violations hereof; (c) detect, prevent, or otherwise address fraud, security or technical issues (including, without limitation, the filtering of spam); (d) respond to user support requests; and/or (e) protect the rights, property or safety of ExaVault, its users and the public. ExaVault will not be responsible or liable for the exercise or non-exercise of its rights under these Terms of Service.

ExaVault reserves the right to cancel or refuse to offer the Platform to anyone at any time at its sole discretion. A pro-rated refund will be issued to paid account holders in the event of a cancellation without cause.

10. Intellectual Property

Except where otherwise explicitly indicated, all materials contained on the Platform are owned by ExaVault, including but not limited to, graphics, text, source code, the selection, arrangement and presentation of all materials, and the overall design of the Platform. Without limiting the foregoing, ExaVault does not claim any ownership of any materials stored or transferred by you on the Platform. Your stuff is your stuff.

Permission is granted to view and print materials from the Platform for the non-commercial purpose of viewing, reading and retaining for reference. Any other copying, distribution, retransmission or modification of information or materials on this site, whether in electronic or hard copy form, without the express prior written permission of ExaVault, is strictly prohibited. Accordingly, you agree that you will not copy, reproduce, alter, modify, or create derivative works from the Platform.

ExaVault and other names, trademarks, and/or service marks (including logos and designs) found on the Platform are trademarks/service marks that identify ExaVault and the goods and/or services provided by ExaVault. Such marks may not be used under any circumstances without the prior written authorization of ExaVault. Such marks may not be used, including as part of trademarks and/or as part of domain names, in connection with any product or service in any manner that is likely to cause confusion and may not be copied, imitated, or used, in whole or in part, without the prior written permission of the ExaVault.

You assign ExaVault exclusive intellectual property rights to any questions, comments, suggestions, ideas, feedback or other information about the Platform provided by you (“Submissions”). Submissions are non-confidential and shall become the sole property of ExaVault. ExaVault may, but it not obligated to, use and disseminate Submissions for any purpose, commercial or otherwise, without acknowledgment, compensation, or other consideration given or owed to you.

If you believe the Platform has been used in a way that constitutes copyright infringement, please send a message and provide the requested information as required by the Digital Millennium Copyright Act ("DMCA") by emailing the following information to dmca@exavault.com:

• A statement that you have identified content on the Service that infringes a copyright you own or the copyright of a third party for whom you are authorized to act;
• A description of the copyrighted work you claim has been infringed;
• A specific description of where the allegedly infringing material is located on the Services, including a URL or exact description of the content's location;
• Your full name, address, telephone number and email address;
• A statement that you have a good faith belief that the disputed use of the copyrighted material is not authorized by the copyright owner, its agent, or the law (e.g., as a fair use);
• A statement that, under penalty of perjury, the information in your notice is accurate and that you are authorized to act on behalf of the owner of the exclusive right that is allegedly infringed; and
• Your electronic or physical signature (e.g., a scanned copy).

ExaVault reserves the right to forward the information in the copyright-infringement notice to the user who allegedly provided the infringing content.

11. Indemnification

Upon request by ExaVault, you agree to defend, indemnify, and hold ExaVault, its affiliates, subsidiaries, successors, and assigns, and each of their respective employees, contractors, officers, directors, and agents harmless from all liabilities, claims, damages, losses, and expenses, including attorney’s fees, that arise from or relate to: (i) your use or misuse of the Platform; (ii) your breach of these Terms of Service, or any other agreement with ExaVault relating to the Platform, such as a BAA; (iii) your illegal activity; and/or (iv) your negligence and/or willful acts or omissions. These indemnity obligations shall include any and all users on your account, with whom you will be jointly and severally liable.

12. Dispute Resolution and Jurisdiction

ExaVault wants to address your concerns without needing a formal legal case. Before filing a claim against ExaVault, you agree to try to resolve the dispute informally by contacting dispute@exavault.com. ExaVault will try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 30 days of submission, you or ExaVault may bring a formal proceeding.

Any dispute arising under these Terms of Service that is not resolved informally as outlined above, will be subject to binding arbitration by a single arbitrator with the American Arbitration Association (AAA), in accordance with its relevant industry rules, if any. The parties agree that this Agreement will be governed by and construed and interpreted in accordance with the laws of the United States and the State of Nevada. The arbitration will be held in Las Vegas, Nevada, United States. The Arbitrator will have the authority to grant injunctive relief and specific performance to enforce the terms of this Agreement. Judgment on any award rendered by the Arbitrator may be entered in any court of competent jurisdiction.

To the fullest extent permitted by applicable law, you and we agree that any Dispute resolution proceedings will be conducted only on an individual basis and not in a class, consolidated, collective, or representative action. To the fullest extent permitted by applicable law, you further agree that you will not be a member of any putative or actual class in a class action brought by anyone else, nor will you seek to become a class representative. If any portion of this paragraph is found to be void or unenforceable as to a particular claim, then that claim (and only that claim) shall be resolved in federal court rather than in arbitration; if there is no federal jurisdiction, the case shall be resolved in Nevada state court.

In the event that you are able to sufficiently demonstrate that the costs of arbitration will be prohibitive as compared to costs of litigation, ExaVault may, but is not obligated to, mutually agree to have the arbitration conducted by telephone, based on written submissions, in person in the county where you live, or at another mutually agreed location.

Any cause of action or claim you may have with respect to the Platform must be commenced within one (1) year after the claim or cause of action arises or it will be barred forever. Notwithstanding the other provisions in this section, if we have a reasonable basis to believe that you have in any manner violated or threatened to violate any of our intellectual property rights, we may bring suit in any state or federal court in the state of Nevada, rather than through arbitration. In such instances, you agree that you will submit to the jurisdiction of the state and federal courts in the state of Nevada.

13. Third Party Hyperlinks

ExaVault may provide hyperlinks to third-party web sites as a convenience to users and visitors of the Platform. ExaVault does not control third-party websites and is not responsible for the contents of any linked-to, third-party web sites or any hyperlink in a linked-to website. Similarly, ExaVault does not endorse, recommend or approve any third-party web site hyperlinked from the Platform and will have no liability to any entity for the content or use of the content available through such hyperlink.

14. Entire Agreement and Priority

This document represents the entire agreement between the parties as it relates to your use of the Platform. Notwithstanding the foregoing, to the extent any provision of this Terms of Service conflicts with another mutually executed document governing your use of the Platform - such as an Order Form, Business Associate Agreement, or Data Processing Addendum - then such other documents shall control.

15. Privacy, Security, and GDPR

We care deeply about your privacy and the security of your data and will act in accordance with our Privacy Policy. Please read it to understand how you are protected.

Our Security Preferences document details a variety of security features that allows you to control how data is viewed, sent, and received.

For information regarding our commitment to the General Data Protection Regulation (“GDPR”), please check out our Privacy Policy.

16. Security Keys and Other Hardware

Any security key or other hardware ("Hardware") purchased or received from us is provided as-is without representations or warranties of any kind, and you accept any and all risks, damages, or losses arising from or relating to the use or misuse of such Hardware. All waivers, disclaimers, limitations, and other terms and conditions contained in this Terms of Service apply to any such Hardware.

17. Additional Points

If any provision of this Terms of Service is found to be invalid by any court or tribunal having competent jurisdiction, the invalidity of such provision shall not affect the validity of the remaining provisions of this Terms of Service, which shall remain in full force and effect. No waiver of any part of this Terms of Service shall be deemed a further or continuing waiver of such term or any other term. Nothing in this Terms of Service shall be deemed to confer any third party rights or benefits.

We may use the name and marks of your company and screenshots from your website in the advertising, marketing, and promotion of ExaVault.

ExaVault and you are not legal partners or agents; instead or relationship is that of independent contractors.

The failure of either party to insist upon or enforce strict performance of any of the provisions of these Terms of Service or to exercise any rights or remedies under these Terms of Service will not be construed as a waiver or relinquishment to any extent of such right to assert or rely upon any such provision, right or remedy in that or any other instance; rather, the same will remain in full force and effect, unless expressly waived in writing.

We may assign, transfer, or otherwise dispose our rights and obligations under this contract, in whole or in part, at any time without notice.  You may not assign this contract or transfer any rights to use the Platform, unless we provide written consent for you to do so.

Sections 1-2, 6-14, & 17-18 will survive after these Terms of Service terminate or your use of the Site and/or Platform ends.

18. Changes to these Terms of Services

ExaVault reserves the right to change these Terms of Service at any time by posting new Terms of Service at this location and alerting paying customers of such change via e-mail and/or through the Platform. Any change(s) to this Terms of Service will take effect thirty (30) days after such changes have been posted. Your continued use of the Platform following such changes will indicate your acceptance of those changes.

This document was last updated according to the date at the top of this page. Questions regarding these Terms of Service should be sent by e-mail to us using our online contact form.