Terms and Conditions of Service
"You", "your" and similar derivations means the person, entity or other association who has entered into this Agreement with Windstream and for whom Windstream has established an Account. This "Agreement" includes these Terms and Conditions and your order for Service. "We", "our," "us" and "Windstream" refer to Windstream Communications, Inc., its subsidiaries and affiliates, as well as any other person or entity doing business as Windstream and providing Services to you pursuant to this Agreement. "Service(s)" refer to the online secure back-up, storage, remote access, and digital content sharing service that you have asked us to provide to you through this Agreement, including any request for new services or changes to existing services made on-line. "Terms and Conditions" include the following provisions, and Windstream's general Terms and Conditions, Acceptable Use Policy, Privacy Statement, and such other additional or alternative terms, conditions, rules and policies that are displayed and maintained at www.windstream.net or to which you may be directed in connection with the Service, as all of the same may be modified by us from time to time.
1. Introduction, Acceptance, Amendments.
Welcome to the Windstream Online Backup Service, an online secure personal file back-up, storage, remote access, and digital content sharing service. This Agreement governs your use, in any manner, of the Services, and describes the Terms and Conditions that apply to the use of the Services.
THIS AGREEMENT CONTAINS LEGAL OBLIGATIONS AND LIMITS OUR LIABILITY. PLEASE READ THIS AGREEMENT CAREFULLY BEFORE REGISTERING FOR AND/OR ACTIVATING THE SERVICES. You accept this Agreement when you do any of the following: (a) register for the Services, (b) activate the Services, (c) give us your written or electronic signature, (d) tell us orally or electronically that you accept (i.e., by clicking the "I Accept" button for on-line registration or account changes), or (e) use or attempt to use, or pay for your use of any of the Services. If you have never used the Services before and do not wish to be bound by these Terms and Conditions, do not begin using the Services, and notify us immediately. By accepting this Agreement, you acknowledge that you are eighteen (18) years of age or older, are competent to enter into a contract with us, and are authorized to purchase new services or make changes to an existing account.
As more particularly described in paragraph 14 and elsewhere in these Terms and Conditions, we will from time to time communicate with you on the subject of changes, modifications or amendments to the Terms and Conditions or any component of the Service. You expressly agree to familiarize yourself with all such communications and follow their instructions as and when required. We are not liable for any damage or detriment to you or your property resulting from your failure to respond to our communications.
2. Description of the Service.
Subject to our acceptance of your registration, activation and your compliance with the Terms and Conditions, we shall establish one online data backup, storage, file access and sharing account in your name on servers (the "Servers") made available by us or our authorized third-party suppliers (the "Account"). If you qualify for and choose the trial option, or if you subscribe to the Service, your Account will allow you to (i) store up to a data limit, depending on the storage option and associated subscription fees you choose, for a subscription fee; (ii) retrieve data and files; and (iii) share digital content (such as pictures, videos, documents) subject to the sharing rules.
3. Minimum System Requirements and Your Equipment.
It is your responsibility to ensure that your computer system meets the current minimum system requirements made available to you by Windstream, as being necessary to use the Service. From time to time, the minimum system requirements may change, and you will be duly notified of any such change in accordance with paragraph 1 hereof. Accordingly, unless you update your computer equipment, it may cease to be adequate to access the Service. In such event, your sole remedy will be to terminate this Service, in accordance with paragraph 15 hereof.
4. Registration, Accounts and Passwords.
You must complete the registration process in order to use the Service. You agree to provide accurate and current information about yourself when registering for the Service and to promptly update such information as necessary to ensure that it is kept accurate and complete. You are solely responsible for: (a) maintaining the confidentiality of any passwords or other Account identifiers that you choose or are assigned as a result of any registration for the Service; and (b) any and all activities or omissions that occur under such password or Account whether through your actions (or inactions) or those of one or more persons utilizing your Account. You further agree to notify us of any unauthorized use of your password or Account. If your password or Account is lost or stolen or fraudulently used, then you are responsible for all usage incurred before we receive notice from you providing us with reasonable opportunity to respond to such loss or theft; and you agree to cooperate in the investigation of fraud or theft and to provide us with such information and documentation as we may request (including affidavits and police reports). We shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, your failure to comply with this paragraph 4, the improper use of your password or Account or improper access to your Account by third parties with or without the use of your password and whether or not authorized.
5. Security of Stored and Shared Data and Files.
We shall use commercially reasonable efforts to restrict access to the data and files that you store, retrieve and/or share from your Account to persons accessing such data and files through use of your Account or password. However, no password-protected system of data storage, retrieval and sharing can be made entirely impenetrable. Accordingly, you hereby acknowledge that it may be possible for an unauthorized third party to access, view, copy, modify and distribute data and files you store and/or share in your Account. As the Service utilizes the public Internet and third party networks to transmit data and files, we do not guarantee the security of any Content or other information transmitted or shared to or from the Service or your Account. Your shared space is designed for sharing; as such, it is recommended that this component of the Service should not include any of your confidential information or personally identifiable information. Any such use shall be at your sole risk, and you hereby release us, our affiliates and our agents and suppliers from all liability in connection therewith.
6. Content of Stored Data and Files.
You are solely responsible for (a) obtaining sufficient rights to the content of all data and files stored by you on the Servers and (b) ensuring that such content does not include any of the items listed in or otherwise provided by paragraph 7 hereof. You acknowledge that we have no obligation to monitor (a) the Service, or (b) the content of any data and files stored by you in your Account (including any text, software, music, sounds, photographs, graphics, videos, logos, images, messages or other products or services) (collectively, "Content") accessible through the Service. We reserve the right, in our sole discretion, to refuse, remove or disable access with immediate effect to any data or files stored on the Servers that we learn may be illegal, may violate the terms of paragraph 7 hereof, may violate the rights of any third party or otherwise may be objectionable in our sole discretion. Furthermore, we shall not be responsible or liable for the deletion, correction, destruction, damage, loss or failure to store any data and files in your Account.
7. Conditions of Use.
Windstream's Acceptable Use Policy (the "Usage Policy"), available by visiting www.windstream.net, governs the general policies and procedures for use of the Services. The Usage Policy may be updated from time to time. YOU SHOULD CAREFULLY READ THE USAGE POLICY. BY USING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS OF THE USAGE POLICY AND ANY MODIFICATIONS. WE RESERVE THE RIGHT TO TERMINATE YOUR ACCOUNT FOR ANY VIOLATION OF THE USAGE POLICY OR THIS AGREEMENT.
You are solely responsible for the Content you store or retrieve from, or attempt to store or retrieve from, your Account and for all transmission by you from and to your Account. You agree to comply with applicable laws, the Terms and Conditions, the Usage Policy and any other Windstream policies in using the Service.
You will NOT use the Service: (a) for any illegal purposes; or (b) to store, retrieve, transmit or view any Content that contains: (i) any illegal or unauthorized pictures, materials or information, including, without limitation, child pornography; (ii) any harassing, libelous, abusive, threatening, harmful, vulgar, obscene or otherwise objectionable material of any kind or nature; (iii) any material that encourages conduct that could constitute a criminal offense, give rise to civil liability or otherwise violate any applicable laws; (iv) a virus, cancelbot, trojan horses, worm or other harmful or disruptive component; or (v) material that violates the intellectual property rights of others.
Your personal information shall be protected by us in a manner consistent with the Windstream Privacy Statement, available by visiting www.windstream.net (the "Windstream Privacy Statement"). By using the Service, you consent to the collection, use and disclosure of your personal information, as described in the Windstream Privacy Statement.
We may send you Service related information through the e-mail address provided by you at the time of registration or any Windstream parent e-mail address or by using any other notice method that will likely come to your attention; and you agree to review all Service-related information. Your continued use of the Service following delivery of such Service related information means that you accept and agree to comply with such information.
We shall not allow for storage space in your Account to exceed the specified plan limit chosen by you. We shall make commercially reasonable efforts to notify you when storage space is approaching its limit.
10. Fees and Charges.
You agree that the Service is provided to you subject to your payment of all applicable Service Fees, as defined below, and you hereby agree to pay the monthly service rates, any applicable usage charges, installation fees and/or activation fees, and other fees and charges, if any, together with all applicable taxes and charges, identified to you upon placing your order for the Service or as otherwise identified to you by us from time to time (collectively, the "Service Fees"), which Service Fees may be amended by us from time to time. For current rates and fees, go to www.windstream.com. Please note that rates and fees posted on the above-mentioned web site do not include applicable taxes or any other charges.
Unless otherwise stated, the total amount is due and payable on the bill date. Invoicing and other payment terms, including late charges, are set forth in and governed by Windstream's general Terms and Conditions maintained at www.windstream.net.
It is your responsibility to ensure that the billing information that you provide to us, including your mailing address and your e-mail address remains current at all times.
11. Dealings with Third Parties.
You acknowledge and agree that your correspondence or business dealings with any third parties, including any individuals, merchants or advertisers, found on, or through, the Service, including payment for and delivery of related goods and services, and all other terms, conditions, representations and warranties related to such dealings, are solely as between you and such third parties. We assume no responsibility whatsoever for any charges you or any user of your Account incurs when making purchases or other transactions in this manner. Further, the responsibility for ensuring compliance with all applicable laws in connection with any such transactions shall be the user's alone. You agree that we shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with, any such dealings or transactions.
12. Downloads and Shareware.
Any software made available for your use in connection with the Service shall be subject to the terms and conditions of an associated software license agreement and shall remain the property of us, our agents and/or suppliers, as applicable. A copy of the applicable software license agreement will be presented during the installation process and/or during use of the software. It is your responsibility to review and agree to the terms and conditions of the applicable software license agreement before installing or using the software. You shall take appropriate steps to protect such software against loss or damage. You agree that all risk associated with the use of, or reliance on, such software rests with you. You further agree that we, including our suppliers, shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, any such software, including the failure of such software to meet your needs, standards, expectations or desired specifications. Unless otherwise provided in the applicable software license agreement, all software license agreements will terminate upon termination of your use of the Service under these Terms and Conditions.
13. Disclaimer Regarding Third Party Content.
The Service may offer access to numerous third party web pages and content available over the Internet. In such instances, including, but not limited to, third party content contained on or accessible through the Service web sites and web pages or sites displayed as search results or contained within a directory of links on the Service, we generally exercise no control over such third party content, web pages, or sites. Windstream is not responsible for the availability of these sites or their content. You agree that it is your responsibility to review and evaluate any such content, and that any and all risk associated with the use of, or reliance on, such content rests with you. You further agree that we shall not be responsible or liable, directly or indirectly, in any way for any loss or damage of any kind incurred as a result of, or in connection with your use of, or reliance on, any such content.
To the extent permitted by applicable law, we may modify the Service, the Terms and Conditions or any other document that forms a part thereof at any time and from time to time, with or without your consent or authorization, including but not limited to modification or amendment of charges or any Service feature. We shall notify you of any amendment or change to the Terms and Conditions or any material change to the Service in advance by posting notice of such change at www.windstream.com, by sending you notice via e-mail to the e-mail address provided by you at the time of registration or any Windstream parent e-mail address or by using any other notice method that will likely come to your attention. You agree to go to the applicable aforementioned Internet address periodically and to review these Terms and Conditions in order to be aware of such modifications. Should you continue to use the Service after a change is effective, to the extent permitted by applicable law, such use shall be deemed to be your acceptance thereto, and you expressly agree that no additional written agreement or express acknowledgement shall be required to accept such change.
We may terminate or suspend the Service and these Terms and Conditions at any time upon notice in our sole discretion. We may terminate, suspend or restrict the Service, your Account and your use thereof, at any time without notice, or terminate these Terms and Conditions if: (a) the operation or efficiency of the Service is impaired by the use of your Account or the Service; (b) any amount is past due from you to us; or (c) there has been or is any breach of any term or condition of these Terms and Conditions or the Usage Policy. We shall not be liable to you or to any other person as a result of any such suspension or termination, and access to your stored data files and other Content will cease immediately.
If you are dissatisfied with the Service or any portion thereof, or with any terms, conditions, rules, policies, guidelines, or practices of Windstream in operating the Service, your sole and exclusive remedy is to discontinue using the Service. Any amounts payable for Services shall be payable in advance, and we shall not be required to refund to you any amounts prepaid for use of the Service. Access to your stored data files and other Content will cease upon the last day of your then current billing cycle; and it shall be your sole responsibility to remove or copy any such stored data, files and other Content prior to such date. Your stored data, files and other Content will be removed from the Servers thereafter.
We shall have no responsibility to notify any third party providers of services, merchandise or information of the termination or suspension of your Account. Any termination shall not relieve you from any Service Fees or other charges owing or other liability accruing hereunder prior to the time that such termination becomes effective. Furthermore, we shall have no obligation to maintain any Content associated with your Account or forward any Content to you or any third party.
16. Disclaimer of Warranties.
The transmission, storage, viewing and retrieval of data and files through the World Wide Web are subject to a variety of conditions that make such transmission, storage, viewing and retrieval potentially unreliable. ACCORDINGLY, YOUR USE OF YOUR ACCOUNT AND THE SERVICE IS AT YOUR SOLE RISK. YOUR ACCOUNT AND THE SERVICE IS PROVIDED TO YOU ON AN "AS IS" AND "AS AVAILABLE" BASIS. WINDSTREAM MAKES NO REPRESENTATIONS OR WARRANTIES REGARDING YOUR ACCOUNT OR THE SERVICE AND DISCLAIMS ANY WARRANTIES OR REPRESENTATIONS, EXPRESS OR IMPLIED, ARISING BY LAW OR OTHERWISE, WITH RESPECT TO YOUR ACCOUNT AND THE SERVICE (INCLUDING, WITHOUT LIMITATION, ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND NON-INFRINGEMENT). PLEASE NOTE THAT YOUR ACCOUNT AND THE SERVICE MAY NOT MEET YOUR NEEDS. WE MAKE NO REPRESENTATION OR WARRANTY: (A) THAT YOUR ACCOUNT OR THE SERVICE WILL MEET YOUR NEEDS; (B) THAT ACCESS TO YOUR ACCOUNT OR THE SERVICE WILL BE TIMELY, ERROR-FREE, UNINTERRUPTED, VIRUS-FREE OR SECURE; (C) THAT THE DATA AND FILES YOU STORE IN YOUR ACCOUNT WILL NOT BE LOST OR DAMAGED; (D) THAT THE DATA ON YOUR DESKTOP OR SERVER WILL NOT BE LOST OR DAMAGED; OR (E) THAT DEFECTS IN THE SERVICE WILL BE CORRECTED. YOU ACKNOWLEDGE THAT ANY MATERIAL OR DATA YOU RETRIEVE THROUGH THE USE OF THE SERVICE IS DONE AT YOUR CHOICE AND RISK AND THAT YOU WILL BE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR COMPUTER SYSTEM OR LOSS OF DATA THAT RESULTS FROM THE RETRIEVAL OF SUCH MATERIAL OR DATA.
17. Limitation of Liability.
YOU EXPRESSLY UNDERSTAND AND AGREE THAT IN NO EVENT SHALL WINDSTREAM, INCLUDING ITS AFFILIATES, BE LIABLE FOR ANY DAMAGES WHATSOEVER, INCLUDING ANY DIRECT, INDIRECT, INCIDENTAL, CONSEQUENTIAL, SPECIAL OR EXEMPLARY DAMAGES, AND ANY DAMAGES FOR LOSS OF PROFITS, SAVINGS, GOODWILL OR OTHER INTANGIBLE LOSSES, REGARDLESS OF WHETHER WE HAD BEEN ADVISED OF OR COULD HAVE FORESEEN THE POSSIBILITY OF SUCH DAMAGES, ARISING OUT OF OR IN CONNECTION WITH: (A) YOUR USE, INABILITY TO USE OR THE PERFORMANCE OF YOUR ACCOUNT OR THE SERVICE OR YOUR LOSS OF CONTENT OR OTHER DATA OR FILES STORED THEREIN, OR ANY SOFTWARE; (B) ANY UNAUTHORIZED ACCESS OR MODIFICATION TO OR TRANSMISSIONS OF ANY OF YOUR CONTENT IN YOUR ACCOUNT OR TRANSMISSIONS; OR (C) ANY OTHER MATTER RELATING TO YOUR ACCOUNT, THE SERVICE OR ANY SOFTWARE, REGARDLESS OF WHETHER ANY OF THE FOREGOING IS DETERMINED TO CONSTITUTE A FUNDAMENTAL BREACH OR FAILURE OF ESSENTIAL PURPOSE.
18. Further Limitation of Liability.
IT IS YOUR RESPONSIBILITY TO ENSURE THAT YOU OBTAIN ALL CONSENTS, AUTHORIZATIONS AND CLEARANCES IN RESPECT OF CONTENT IN YOUR ACCOUNT OWNED OR CONTROLLED BY THIRD PARTIES THAT YOU TRANSMIT, PROVIDE ACCESS OR COMMUNICATE TO OTHERS USING THE SERVICE. WE SHALL NOT BE LIABLE IN ANY WAY (A) FOR ANY ERRORS OR OMISSIONS IN ANY CONTENT, OR FOR ANY LOSS OR DAMAGE OF ANY KIND INCURRED AS A RESULT OF ANY CONTENT TRANSMITTED VIA THE SERVICE; (B) IF YOU ARE EXPOSED TO CONTENT THAT IS OFFENSIVE, INDECENT OR OBJECTIONABLE; OR (C) FOR ANY VIOLATIONS OF COPYRIGHT OR OTHER PROPRIETARY RIGHTS AS A RESULT OF YOUR USE OF THE SERVICE.
You agree to defend, indemnify and hold Windstream, its affiliates, suppliers and other partners, directors, officers, employees and agents harmless from any and all threatened or actual claims or demands, including reasonable attorneys' fees and costs, made by any third party due to or arising out of (a) your use of your Account and the Service, (b) any data, files and Content stored by you in your Account or made available to a third party in your Account and otherwise on the Servers and (c) any violation of the Terms and Conditions or Usage Policy by you.
20. Interruption of Service; Force Majeure.
You hereby acknowledge and agree that we shall not be liable for any temporary delay, outages, or interruptions of the Services. Further, we shall not be liable for any delay or failure to perform any of our obligations under this Agreement, where such delay or failure results from any act of God or other cause beyond our reasonable control (including, without limitation, any mechanical, electronic, communications, or third-party supplier failure).
21. No License; Intellectual Property of Windstream and Others.
Except as expressly provided in these Terms and Conditions, nothing herein or within the Service shall be construed as conferring any license under any of Windstream's or any third party's intellectual property rights, whether by estoppel, implication, waiver, or otherwise. Without limiting the generality of the foregoing, you acknowledge and agree that certain Content available through and used to operate the Service is protected by copyright, trademark, patent, or other proprietary rights of us, our affiliates, licensors, suppliers and/or service providers. You agree not to adapt, translate, modify, decompile, disassemble, or reverse engineer any software, applications or programs used in connection with the Service. Further, you agree (a) not to modify, alter, or deface any of the trademarks, service marks, or other intellectual property made available through the Service, and (b) not to use any of the forgoing for any purpose other than the purpose for which such intellectual property is made available to users through the Service.
All product, brand and company names and logos used on the Service are the trademarks or registered trademarks of their respective owners. Any use of any of the marks appearing on the Service without the express written consent of Windstream or the owner of the mark, as appropriate, is strictly prohibited.
23. Copyright Notices.
All information and Content contained on, or made available over, the Service are: Copyright © 2009. Windstream. All rights reserved. Any copying, republication or redistribution of such Content, including by caching, framing or similar means, is expressly prohibited without the prior written consent of Windstream or the applicable copyright owner.
24. Services Provided by Third Parties.
The Services will be provided either by us or by our third party vendors or contractors. We reserve the right to change or modify the source of any of the Services provided to you without notice.
25. Applicable Law.
Your Agreement, the Terms and Conditions and our provision of Services to you are subject to (a) the laws of the state identified in the billing address that you have provided us and (b) any applicable federal or state laws. In the event of an inconsistency between any governmental requirement and this Agreement regarding the provision of a Service that is subject to the governmental requirement, the provisions of the governmental requirement will apply to the extent necessary to avoid the inconsistency.
We may assign this Agreement to another entity without any advance consent from or notice to you. You may not assign this Agreement without our prior written consent.
27. No Waiver, Severability.
If we do not enforce any right or remedy available under this Agreement, that failure is not a waiver. If any part of this Agreement is held invalid or unenforceable, that provision shall be severed or shall be enforced only to the extent legally permitted, and the remainder of this Agreement will remain in full force and effect.
28. No Third Party Beneficiaries.
This Agreement is for the benefit of you and us only, and not any third party.
You hereby acknowledge that Windstream and its affiliates may retain and use any information, comments or ideas conveyed by you relating to the Service (including any products and services made available on the Service). This information may be used to provide you with better service.
30. Contact Information.
If you have any questions regarding this Agreement, you may contact Windstream at www.windstream.com/support, or by calling 1-866-445-3402.
31. Entire Agreement.