Data Isolate Business Agreement

September 1st 2021

This Data Isolate Business Agreement (the “Agreement”) is between Data Isolate LLC a Delaware Limited Liability Company and the organization agreeing to these terms (“Customer”). This Agreement governs access to and use of the Data Isolate Business client software, storage, vaulting and services (together, “Data Isolate Business”), as well as the Beta Services that are made available to you. By clicking “I agree”, signing your contract for the Services or using the Services, you agree to this Agreement as a Customer.

  1. Services.
    1. Provision of Services. Customer and users of Customer’s Services account (“End Users“) may access and use the Services in accordance with this Agreement.
    2. Facilities and Data Processing. Data Isolate will use, at a minimum, industry standard technical and organizational security measures to transfer, store and process Customer Data. These measures are designed to protect the integrity of Customer Data and guard against the unauthorized or unlawful access to, use and processing of Customer Data. The Customer agrees that Data Isolate may transfer, store and process Customer Data in the United States and locations other than the Customer’s country. To the extent that Customer Data is subject to EU Data Protection Laws and is processed by Data Isolate as a data processor acting on the Customer’s behalf (as a data controller), Data Isolate will use and process such Customer Data as the Customer instructs in order to provide the Services and fulfil Data Isolate’s obligations under the Agreement. “Customer Data” means Stored Data and Account Data. “Stored Data” means the files and structured data submitted to the Services by the Customer or End Users. “Account Data” means the account and contact information submitted to the Services by the Customer or End Users.
    3. Modifications to the Services. Data Isolate may update the Services from time to time. If Data Isolate changes the Services in a manner that materially reduces their functionality, Data Isolate will inform Customer via the email address associated with the account.
    4. Software. Some Services allow Customer to download Data Isolate software, which may be updated automatically. Customer may use the software only to access the Services. If any component of the software is offered under an open-source license, Data Isolate will make the license available to Customer and the provisions of that license may expressly override some of the terms of this Agreement.
    5. Beta Services. Data Isolate may provide features or products that we are still testing and evaluating. These products and features are identified as alpha, beta, preview, early access or evaluation (or words or phrases with similar meanings) (collectively “Beta Services“). Notwithstanding anything to the contrary in this Agreement or in Schedule 1, the following terms apply to all Beta Services: (a) you may use or decline to use any Beta Services; (b) Beta Services may not be supported and may be changed at any time without notice to you; (c) Beta Services may not be as reliable or available as Data Isolate Business; (d) Beta Services have not been subjected to the same security measures and auditing to which Data Isolate Business has been subjected; and (e) DATA ISOLATE WILL HAVE NO LIABILITY ARISING OUT OF OR IN CONNECTION WITH BETA SERVICES – USE AT YOUR OWN RISK.
  2. Customer Obligations.
    1. Compliance. Customer is responsible for use of the Services by its End Users. Customer must not store illegal content including but not limited to child pornography. Customer will obtain from End Users any consents necessary to allow Administrators to engage in the activities described in this Agreement and to allow Data Isolate to provide the Services. Customer will comply with laws and regulations applicable to Customer’s use of the Services, if any.
    2. Customer Administration of the Services. The Customer may specify End Users as “Administrators” through the administrative console. Administrators may have the ability to access, disclose, restrict, or remove Customer Data in or from Services accounts. Administrators may also have the ability to monitor, restrict or terminate access to Services accounts. Data Isolate’s responsibilities do not extend to the internal management or administration of the Services. The Customer is responsible for: (i) maintaining the confidentiality of passwords and Administrator accounts; (ii) managing access to Administrator accounts; and (iii) ensuring that Administrators’ use of the Services complies with this Agreement. The Customer acknowledges that, if the Customer purchases the Services through a reseller and delegates any of such reseller’s personnel as Administrators of the Customer’s Services account, such reseller may be able to control account information, including Customer Data, and access the Customer’s Services account as further described above.
    3. Unauthorized Use & Access. Customer will prevent unauthorized use of the Services by its End Users and terminate any unauthorized use of or access to the Services. The Services are not intended for End Users under the age of 13. Customer will ensure that it does not allow any person under 13 to use the Services. Customer will promptly notify Data Isolate of any unauthorized use of or access to the Services.
    4. Restricted Uses. Customer will not (i) sell, resell or lease the Services; (ii) use the Services for activities where use or failure of the Services could lead to physical damage, death or personal injury; or (iii) reverse engineer the Services, nor attempt nor assist anyone else to do so, unless this restriction is prohibited by law.
    5. Third-party Requests.
      1. “Third-party Request” means a request from a third party for records relating to an End User’s use of the Services including information in or from an End User or Customer’s Services account. Third-party Requests may include valid search warrants, court orders or subpoenas, or any other request for which there is written consent from End Users permitting a disclosure.
      2. Customer is responsible for responding to Third-party Requests via its own access to information. Customer will seek to obtain information required to respond to Third-party Requests and will contact Data Isolate only if it cannot obtain such information despite diligent efforts.
      3. Data Isolate will make commercially reasonable efforts, to the extent allowed by law and by the terms of the Third-party Request, to: (A) promptly notify Customer of Data Isolate’s receipt of a Third-party Request; (B) comply with Customer’s commercially reasonable requests regarding its efforts to oppose a Third-party Request; and (C) provide Customer with information or tools required for Customer to respond to the Third-party Request (if Customer is otherwise unable to obtain the information). If Customer fails to promptly respond to any Third-party Request, Data Isolate may, but will not be obligated to do so.
  3. Third-party Services. If Customer uses any third-party service (e.g. a service that uses a Data Isolate API) with the Services, (a) Data Isolate will not be responsible for any act or omission of the third party, including the third party’s access to or use of Customer Data and (b) Data Isolate does not warrant or support any service provided by the third party.
  4. Suspension
    1. Of End User Accounts by Data Isolate. If an End User (i) violates this Agreement or (ii) uses the Services in a manner that Data Isolate reasonably believes will cause it liability, then Data Isolate may request that Customer suspend or terminate the applicable End User account. If Customer fails to promptly suspend or terminate the End User account, then Data Isolate may do so.
    2. Security Emergencies. Notwithstanding anything in this Agreement, if there is a Security Emergency then Data Isolate may automatically suspend use of the Services. Data Isolate will make commercially reasonable efforts to narrowly tailor the suspension as needed to prevent or terminate the Security Emergency. “Security Emergency” means: (i) use of the Services that do or could disrupt the Services, other customers’ use of the Services, or the infrastructure used to provide the Services and (ii) unauthorized third-party access to the Services.
  5. Intellectual Property Rights.
    1. Reservation of Rights. Except as expressly set forth herein, this Agreement does not grant (i) Data Isolate any Intellectual Property Rights in Customer Data or (ii) Customer any Intellectual Property Rights in the Services or Data Isolate trademarks and brand features. “Intellectual Property Rights” means current and future worldwide rights under patent, copyright, trade secret, trademark, moral rights and other similar rights.
    2. Limited Permission. Customer grants Data Isolate only the limited rights that are reasonably necessary for Data Isolate to offer the Services (e.g. hosting Stored Data). This permission also extends to our affiliates and trusted third parties that Data Isolate works with to offer the Services (e.g. payment provider used to process payment of fees).
    3. Suggestions. Data Isolate may, at its discretion and for any purpose, use, modify and incorporate into its products and services, license and sub-license, any feedback, comments, or suggestions that Customer or End Users send Data Isolate or post in Data Isolate’s forums without any obligation to Customer.
    4. Customer List. Data Isolate may include Customer’s name in a list of Data Isolate customers on the Data Isolate website or in promotional materials.
  6. Fees & Payment.
    1. Fees. The Customer will pay and authorizes Data Isolate or the Customer’s reseller to charge, using the Customer’s selected payment method, for all applicable fees. Fees are non-refundable except as required by law. The Customer is responsible for providing complete and accurate billing and contact information to Data Isolate or the Customer’s reseller. Data Isolate may suspend or terminate the Services if fees are overdue.
    2. Auto-renewals and Trials. IF THE CUSTOMER’S ACCOUNT IS SET TO AUTO-RENEWAL OR IS IN A TRIAL PERIOD, DATA ISOLATE (OR THE CUSTOMER’S RESELLER) MAY CHARGE AUTOMATICALLY AT THE END OF THE TRIAL OR FOR THE RENEWAL, UNLESS THE CUSTOMER NOTIFIES DATA ISOLATE (OR THE CUSTOMER’S RESELLER, AS APPLICABLE) THAT THE CUSTOMER WANTS TO CANCEL OR DISABLE AUTO-RENEWAL. Data Isolate may revise Service rates by providing the Customer at least 30 days notice prior to the next charge.
    3. Taxes. The Customer is responsible for all taxes. Data Isolate or the Customer’s reseller will charge tax when required to do so. If the Customer is required by law to withhold any taxes, the Customer must provide Data Isolate or the Customer’s reseller with an official tax receipt or other appropriate documentation.
    4. Purchase Orders. If the Customer requires the use of a purchase order or purchase order number, the Customer (i) must provide the purchase order number at the time of purchase and (ii) agrees that any terms and conditions on a Customer purchase order will not apply to this Agreement and are null and void. If the Customer is purchasing via a reseller, any terms and conditions from the Customer’s reseller or in a purchase order between the Customer and its reseller that conflict with the Data Isolate Business Agreement are null and void.
  7. Term & Termination.
    1. Term. This Agreement will remain in effect until Customer’s subscription to the Services expires or terminates, or until the Agreement is terminated.
    2. Termination for Breach. Either Data Isolate or Customer may terminate this Agreement if: (i) the other party is in material breach of the Agreement and fails to cure that breach within 30 days after receipt of written notice or (ii) the other party ceases its business operations or becomes subject to insolvency proceedings and the proceedings are not dismissed within 90 days.
    3. Effects of Termination. If this Agreement terminates: (i) the rights granted by Data Isolate to Customer will cease immediately (except as set forth in this section); (ii) Data Isolate may provide Customer access to its account at then-current fees so that Customer may export its Stored Data; and (iii) after 30 days, Data Isolate may delete any Stored Data relating to Customer’s account. The following sections will survive expiry or termination of this Agreement: 2(e) (Third-party Requests), 5 (Intellectual Property Rights), 6 (Fees & Payment), 7(c) (Effects of Termination), 8 (Indemnification), 9 (Disclaimers), 10 (Limitation of Liability), 11 (Disputes) and 12 (Miscellaneous).
  8. Indemnification.
    1. By Customer. Customer will indemnify, defend, and hold harmless Data Isolate from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Data Isolate and its affiliates regarding: (i) Customer Data; (ii) Customer’s use of the Services in violation of this Agreement; or (iii) End Users’ use of the Services in violation of this Agreement.
    2. By Data Isolate. Data Isolate will indemnify, defend, and hold harmless Customer from and against all liabilities, damages and costs (including settlement costs and reasonable attorneys’ fees) arising out of any claim by a third party against Customer to the extent based on an allegation that Data Isolate’s technology used to provide the Services to the Customer infringes or misappropriates any copyright, trade secret, US patent or trademark right of the third party. In no event will Data Isolate have any obligations or liability under this section arising from: (i) use of any Services in a modified form or in combination with materials not furnished by Data Isolate and (ii) any content, information or data provided by Customer, End Users or other third parties.
    3. Possible Infringement. If Data Isolate believes the Services infringe or may be alleged to infringe a third party’s Intellectual Property Rights, Data Isolate may: (i) obtain the right for Customer, at Data Isolate’s expense, to continue using the Services; (ii) provide a non-infringing functionally equivalent replacement; or (iii) modify the Services so that they no longer infringe. If Data Isolate does not believe the options described in this section are commercially reasonable, Data Isolate may suspend or terminate Customer’s use of the affected Services (with a pro rata refund of pre-paid fees for the Services).
    4. General. The party seeking indemnification will promptly notify the other party of the claim and cooperate with the other party in defending the claim. The indemnifying party will have full control and authority over the defense, except that: (i) any settlement requiring the party seeking indemnification to admit liability requires prior written consent, not to be unreasonably withheld or delayed and (ii) the other party may join in the defense with its own counsel at its own expense. THE INDEMNITIES ABOVE ARE DATA ISOLATE AND CUSTOMER’S ONLY REMEDY UNDER THIS AGREEMENT FOR VIOLATION BY THE OTHER PARTY OF A THIRD PARTY’S INTELLECTUAL PROPERTY RIGHTS.
  9. Disclaimers. THE SERVICES ARE PROVIDED “AS IS”. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT AS EXPRESSLY STATED IN THIS AGREEMENT, NEITHER CUSTOMER NOR DATA ISOLATE AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE ANY WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR USE OR NON-INFRINGEMENT. CUSTOMER IS RESPONSIBLE FOR MAINTAINING AND BACKING UP ANY STORED DATA.
  10. Limitation of Liability.
    1. Limitation on Indirect Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, EXCEPT FOR DATA ISOLATE OR CUSTOMER’S INDEMNIFICATION OBLIGATIONS, NEITHER CUSTOMER NOR DATA ISOLATE AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS WILL BE LIABLE UNDER THIS AGREEMENT FOR (I) INDIRECT, SPECIAL, INCIDENTAL, CONSEQUENTIAL, EXEMPLARY OR PUNITIVE DAMAGES, OR (II) LOSS OF USE, DATA, BUSINESS, REVENUES OR PROFITS (IN EACH CASE WHETHER DIRECT OR INDIRECT), EVEN IF THE PARTY KNEW OR SHOULD HAVE KNOWN THAT SUCH DAMAGES WERE POSSIBLE AND EVEN IF A REMEDY FAILS OF ITS ESSENTIAL PURPOSE.
    2. Limitation on Amount of Liability. TO THE FULLEST EXTENT PERMITTED BY LAW, DATA ISOLATE’S AGGREGATE LIABILITY UNDER THIS AGREEMENT WILL NOT EXCEED THE LESSER OF $1,000 OR THE AMOUNT PAID BY THE CUSTOMER FOR THE SERVICES HEREUNDER DURING THE ONE MONTH PRIOR TO THE EVENT GIVING RISE TO LIABILITY.
  11. Disputes.
    1. Informal Resolution. Data Isolate wants to address your concerns without resorting to a formal legal case. Before filing a claim, each party agrees to try to resolve the dispute by contacting the other party through the notice procedures in section 12(e). If a dispute is not resolved within 30 days of notice, Customer or Data Isolate may bring a formal proceeding.
    2. Agreement to Arbitrate. Customer and Data Isolate agree to resolve any claims relating to this Agreement or the Services through final and binding arbitration, except as set forth below. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules. The arbitration will be held in Florida.
    3. Exception to Agreement to Arbitrate. Either party may bring a lawsuit in the federal or state courts of Hillsborough County Florida solely for injunctive relief to stop unauthorized use or abuse of the Services or infringement of Intellectual Property Rights without first engaging in the informal dispute notice process described above. Both Customer and Data Isolate consent to venue and personal jurisdiction there.
    4. NO CLASS ACTIONS. Customer may only resolve disputes with Data Isolate on an individual basis and will not bring a claim in a class, consolidated or representative action. Class arbitrations, class actions, private attorney general actions and consolidation with other arbitrations are not allowed.
  12. Miscellaneous.
    1. Terms Modification. Data Isolate may revise this Agreement from time to time and the most current version will always be posted on the Data Isolate Business website. If a revision, in Data Isolate’s sole discretion, is material, Data Isolate will notify Customer (by, for example, sending an email to the email address associated with the applicable account). Other revisions may be posted to Data Isolate’s blog or terms page, and Customer is responsible for checking such postings regularly. By continuing to access or use the Services after revisions become effective, Customer agrees to be bound by the revised Agreement. If Customer does not agree to the revised Agreement terms, Customer may terminate the Services within 30 days of receiving notice of the change.
    2. Entire Agreement. This Agreement, including the Customer’s invoice and order form with Data Isolate (if applicable), constitutes the entire agreement between the Customer and Data Isolate with respect to the subject matter of this Agreement, and supersedes and replaces any prior or contemporaneous understandings and agreements, whether written or oral, with respect to the subject matter of this Agreement. If there is a conflict between the documents that make up this Agreement, the documents will control in the following order: the Data Isolate invoice, the Data Isolate order form, the Agreement.
    3. Governing Law. THE AGREEMENT WILL BE GOVERNED BY FLORIDA LAW.
    4. Severability. Unenforceable provisions will be modified to reflect the parties’ intention and only to the extent necessary to make them enforceable, and the remaining provisions of the Agreement will remain in full effect.
    5. Notice. Notices must be sent via first class post, airmail or overnight courier and are deemed given when received. Notices to Customer may also be sent to the applicable account email address and are deemed given when sent. Notices to Data Isolate must be sent to Data Isolate, LLC, 8 The Green, STE 8, Dover, DE 19901 with a copy to the Legal Department.
    6. Waiver. A waiver of any default is not a waiver of any subsequent default.
    7. Assignment. Customer may not assign or transfer this Agreement or any rights or obligations under this Agreement without the written consent of Data Isolate. Data Isolate may not assign this Agreement without providing notice to Customer, except Data Isolate may assign this Agreement or any rights or obligations under this Agreement to an affiliate or in connection with a merger, acquisition, corporate reorganization, or sale of all or substantially all of its assets without providing notice. Any other attempt to transfer or assign is void.
    8. No Agency. Data Isolate and Customer are not legal partners or agents, but are independent contractors.
    9. Force Majeure. Except for payment obligations, neither Data Isolate nor Customer will be liable for inadequate performance to the extent caused by a condition that was beyond the party’s reasonable control (for example, natural disaster, act of war or terrorism, riot, labor condition, governmental action and Internet disturbance).
    10. No Third-party Beneficiaries. There are no third-party beneficiaries to this Agreement. Without limiting this section, a Customer’s End Users are not third-party beneficiaries to Customer’s rights under this Agreement.
    11. Export Restrictions. The export and re-export of Customer Data via the Services may be controlled by the United States Export Administration Regulations or other applicable export restrictions or embargo. The Services may not be used in Cuba, Iran, North Korea, Sudan or Syria, or any country that is subject to an embargo by the United States and Customer must not use the Services in violation of any export restriction or embargo by the United States or any other applicable jurisdiction. In addition, Customer must ensure that the Services are not provided to persons on the United States Table of Denial Orders, the Entity List or the List of Specially Designated Nationals.