Posted: August 1st, 2020
Effective: August 1st, 2020

Thanks for using SHIELD Cloud! Our mission is to provide you with easy to use tools that will help improve your peace of mind, security, and day to day operations.

These terms of service (“Terms”) cover your use and access to our services, software and websites (“Services”). This agreement is between you and Stark & Wayne LLC. Our Privacy Policy explains how we collect and use your information while our Acceptable Use Policy outlines your responsibilities when using our Services. By using our Services, you're agreeing to be bound by these Terms, our Privacy Policy, and Acceptable Use Policy.

Your Snapshot Archives & Your Permissions

While using our Services, you provide access to backup your data which is stored as Snapshot Archives (“Your Snapshot Archives”). Your Snapshot Archives are yours. These Terms don't give us any rights to Your Snapshot Archives except for the limited rights that enable us to offer the Services. We need your permission to do things like hosting Your Snapshot Archives, backing them up, and restoring when you ask us to.

Your Responsibilities

Your use of our Services must comply with our Acceptable Use Policy.

SHIELD Cloud may review your conduct and content for compliance with these Terms and our Acceptable Use Policy.

Help us keep Your Snapshot Archives protected. Safeguard your password to the Services, and keep your account information current. Don't share your account credentials or give others access to your account.

You may use our Services only as permitted by applicable law, including export control laws and regulations. Finally, to use our Services, you must be at least 13 (or older, depending on where you live).

Software

Our service may allow you access to software (“Software”). So long as you comply with these Terms, we give you a limited, nonexclusive, nontransferable, revocable license to use the Software, solely to access the Services. To the extent any component of the Software may be offered under an open source license, we'll make that license available to you and the provisions of that license may expressly override some of these Terms. Unless the following restrictions are prohibited by law, you agree not to reverse engineer or decompile the Services, attempt to do so, or assist anyone in doing so.

Beta Services

We sometimes release products and features that we're still testing and evaluating (“Beta Services”). Beta Services are labeled “alpha,” “beta,” “preview,” “early access,” or “evaluation” (or with words or phrases with similar meanings) and may not be as reliable as SHIELD Cloud”s other services. Beta Services are made available so that we can collect user feedback, and by using our Beta Services, you agree that we may contact you to collect such feedback.

Beta Services are confidential until official launch. If you use any Beta Services, you agree not to disclose any information about those Services to anyone else without our permission.

Our Stuff

The Services are protected by copyright, trademark, and other US and foreign laws. These Terms don't grant you any right, title, or interest in the Services, others' content in the Services, SHIELD Cloud trademarks, logos and other brand features. We welcome feedback, but note that we may use comments or suggestions without any obligation to you.

Accounts

Billing. You can upgrade your SHIELD Cloud plan at any time, you will automatically be billed for the date upgraded until cancellation. Requests to reduce or terminate service can be made to. You're responsible for all applicable taxes, and we'll charge tax when required to do so. Some countries have mandatory local laws regarding your cancellation rights, and this paragraph doesn't override these laws. Your Account will remain in effect until it's cancelled or terminated under these Terms. If you don't pay for your Account on time, we reserve the right to suspend it or remove Account data.

No Refunds. You may cancel your SHIELD service by contacting Support@shieldcloud.io to ensure appropriate review of termination of backups. Users have the right to cancel within 14 days of signing up for, upgrading to, or renewing.

Downgrades. Downgrade requests can be done by contacting support@shieldcloud.io. Downgrades require review of configuration and limits which is why downgrades are limited to one per monthly billing cycle.

Changes. We may change the fees in effect but will give you advance notice of these changes via a message to the email address associated with your account.

Termination

You're free to stop using our Services at any time. We reserve the right to suspend, delta, or terminate your access to the Services with notice to you if:

  1. you're in breach of these Terms, or
  2. your use of the Services would cause a real risk of harm or loss to us or other users.

We'll provide you with reasonable advance notice via the email address associated with your account to remedy the activity that prompted us to contact you and give you the opportunity to export Your Snapshot Archives from our Services. If after such notice you fail to take the steps we ask of you, we'll terminate or suspend your access to the Services.

We won't provide notice before termination where:

  1. you're in material breach of these Terms,
  2. doing so would cause us legal liability or compromise our ability to provide the Services to our other users, or
  3. we're prohibited from doing so by law.

Discontinuation of Services

We may decide to discontinue the Services in response to unforeseen circumstances beyond SHIELD Cloud's control or to comply with a legal requirement. If we do so, we'll give you reasonable prior notice so that you can export Your Snapshot Archives from our systems. If we discontinue the Services in this way before the end of any fixed or minimum term you have paid us for, we'll refund the portion of the fees you have pre-paid but haven't received Services for.

Services “AS IS”

We strive to provide great Services, but there are certain things that we can't guarantee. TO THE FULLEST EXTENT PERMITTED BY LAW, SHIELD Cloud AND ITS AFFILIATES, SUPPLIERS AND DISTRIBUTORS MAKE NO WARRANTIES, EITHER EXPRESS OR IMPLIED, ABOUT THE SERVICES. THE SERVICES ARE PROVIDED "AS IS." WE ALSO DISCLAIM ANY WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. Some places don't allow the disclaimers in this paragraph, so they may not apply to you.

Limitation of Liability

WE DON'T EXCLUDE OR LIMIT OUR LIABILITY TO YOU WHERE IT WOULD BE ILLEGAL TO DO SO—THIS INCLUDES ANY LIABILITY FOR SHIELD Cloud'S OR ITS AFFILIATES' FRAUD OR FRAUDULENT MISREPRESENTATION IN PROVIDING THE SERVICES. IN COUNTRIES WHERE THE FOLLOWING TYPES OF EXCLUSIONS AREN'T ALLOWED, WE'RE RESPONSIBLE TO YOU ONLY FOR LOSSES AND DAMAGES THAT ARE A REASONABLY FORESEEABLE RESULT OF OUR FAILURE TO USE REASONABLE CARE AND SKILL OR OUR BREACH OF OUR CONTRACT WITH YOU. THIS PARAGRAPH DOESN'T AFFECT CONSUMER RIGHTS THAT CAN'T BE WAIVED OR LIMITED BY ANY CONTRACT OR AGREEMENT.

IN COUNTRIES WHERE EXCLUSIONS OR LIMITATIONS OF LIABILITY ARE ALLOWED, SHIELD Cloud, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WON'T BE LIABLE FOR:

  1. ANY INDIRECT, SPECIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, OR
  2. ANY LOSS OF USE, DATA, BUSINESS, OR PROFITS, REGARDLESS OF LEGAL THEORY.

THESE EXCLUSIONS OR LIMITATIONS WILL APPLY REGARDLESS OF WHETHER OR NOT SHIELD Cloud OR ANY OF ITS AFFILIATES HAS BEEN WARNED OF THE POSSIBILITY OF SUCH DAMAGES.

IF YOU USE THE SERVICES FOR ANY COMMERCIAL, BUSINESS, OR RE-SALE PURPOSE, SHIELD Cloud, ITS AFFILIATES, SUPPLIERS OR DISTRIBUTORS WILL HAVE NO LIABILITY TO YOU FOR ANY LOSS OF PROFIT, LOSS OF BUSINESS, BUSINESS INTERRUPTION, OR LOSS OF BUSINESS OPPORTUNITY. SHIELD Cloud AND ITS AFFILIATES AREN'T RESPONSIBLE FOR THE CONDUCT, WHETHER ONLINE OR OFFLINE, OF ANY USER OF THE SERVICES.

OTHER THAN FOR THE TYPES OF LIABILITY WE CANNOT LIMIT BY LAW (AS DESCRIBED IN THIS SECTION), WE LIMIT OUR LIABILITY TO YOU TO THE GREATER OF $20 USD OR 100% OF ANY AMOUNT YOU'VE PAID UNDER YOUR CURRENT SERVICE PLAN WITH SHIELD Cloud.

Resolving Disputes

We want to address your concerns without needing a formal legal case. Before filing a claim against SHIELD Cloud, you agree to try to resolve the dispute informally by contacting dispute-notice@shieldcloud.io. We'll try to resolve the dispute informally by contacting you via email. If a dispute is not resolved within 15 days of submission, you or SHIELD Cloud may bring a formal proceeding.

Judicial Forum for Disputes. You and SHIELD Cloud agree that any judicial proceeding to resolve claims relating to these Terms or the Services will be brought in the federal or state courts of Erie County, New York, subject to the mandatory arbitration provisions below. Both you and SHIELD Cloud consent to venue and personal jurisdiction in such courts. If you reside in a country (for example, a member state of the European Union) with laws that give consumers the right to bring disputes in their local courts, this paragraph doesn't affect those requirements.

IF YOU'RE A U.S. RESIDENT, YOU ALSO AGREE TO THE FOLLOWING MANDATORY ARBITRATION PROVISIONS:

We Both Agree to Arbitrate. You and SHIELD Cloud agree to resolve any claims relating to these Terms or the Services through final and binding arbitration by a single arbitrator, except as set forth under Exceptions to Agreement to Arbitrate below. This includes disputes arising out of or relating to interpretation or application of this “Mandatory Arbitration Provisions” section, including its enforceability, revocability, or validity.

Opt-out of Agreement to Arbitrate. You can decline this agreement to arbitrate by sending an email request to legal@starkandwayne.com within 30 days of first registering your account.

Arbitration Procedures. The American Arbitration Association (AAA) will administer the arbitration under its Commercial Arbitration Rules and the Supplementary Procedures for Consumer Related Disputes. The arbitration will be held in the United States, in Erie County (NY), or any other location we mutually agree to.

Arbitration Fees and Incentives. The AAA rules will govern payment of all arbitration fees. SHIELD Cloud may decide to pay arbitration fees at SHIELD Cloud's sole discretion. If you receive an arbitration award that is more favorable than any offer we make to resolve the claim, we will pay you $1,000 in addition to the award. SHIELD Cloud will not seek its attorneys' fees and costs in arbitration unless the arbitrator determines that your claim is frivolous.

Exceptions to Agreement to Arbitrate. Either you or SHIELD Cloud may assert claims, if they qualify, in small claims court in Erie County, NYor any United States county where you live or work. Either party may bring a lawsuit solely for injunctive relief to stop unauthorized use or abuse of the Services, or intellectual property infringement (for example, trademark, trade secret, copyright, or patent rights) without first engaging in arbitration or the informal dispute-resolution process described above. If the agreement to arbitrate is found not to apply to you or your claim, you agree to the exclusive jurisdiction of the state and federal courts in Erie County, NY to resolve your claim.

NO CLASS ACTIONS. You may only resolve disputes with us on an individual basis, and may not bring a claim as a plaintiff or a class member in a class, consolidated, or representative action. Class arbitrations, class actions, private attorney general actions, and consolidation with other arbitrations aren't allowed. If this specific paragraph is held unenforceable, then the entirety of this “Mandatory Arbitration Provisions” section will be deemed void.

Controlling Law

These Terms will be governed by New York law except for its conflicts of laws principles. However, some countries (including those in the European Union) have laws that require agreements to be governed by the local laws of the consumer's country. This paragraph doesn't override those laws.

Entire Agreement

These Terms constitute the entire agreement between you and Stark & Wayne LLC with respect to the subject matter of these Terms, and supersede and replace any other prior or contemporaneous agreements, or terms and conditions applicable to the subject matter of these Terms. These Terms create no third party beneficiary rights.

Waiver, Severability & Assignment

SHIELD Cloud's failure to enforce a provision is not a waiver of its right to do so later. If a provision is found unenforceable, the remaining provisions of the Terms will remain in full effect and an enforceable term will be substituted reflecting our intent as closely as possible. You may not assign any of your rights under these Terms, and any such attempt will be void. SHIELD Cloud may assign its rights to any of its affiliates or subsidiaries, or to any successor in interest of any business associated with the Services.

Modifications

We may revise these Terms from time to time to better reflect:

  1. changes to the law,
  2. new regulatory requirements, or
  3. improvements or enhancements made to our Services.

If an update affects your use of the Services or your legal rights as a user of our Services, we'll notify you prior to the update's effective date by sending an email to the email address associated with your account or via an in-product notification. These updated terms will be effective no less than 30 days from when we notify you.

If you don't agree to the updates we make, please cancel your account before they become effective. Where applicable, we'll offer you a prorated refund based on the amounts you have prepaid for Services and your account cancellation date. By continuing to use or access the Services after the updates come into effect, you agree to be bound by the revised Terms.