Cloud Backup Terms of Service

These General Terms of Service (the “General Terms”) govern your use of Planet Cyber’s products and services (collectively, the “Products and Services”). The term of these General Terms shall be the duration of your use of the Products and Services. By using any of the Products and Services, you agree to these General Terms, including terms that limit our liability (see Section 14), require individual arbitration for any potential legal dispute (see Section 17) and authorize contracting through electronic systems (see Section 19). You also agree that certain Products and Services are subject to additional terms, including applicable Product and Service Specific Terms (see Section 2, and “Requirements” and “Restrictions” which mean, respectively, (a) technical requirements and specifications and (b) limitations on your use of the applicable Products and Services, as such Requirements and Restrictions.

  1. Parties to the Agreement.

This Agreement is a legal contract between Planet Cyber on behalf of itself and its affiliates and subsidiaries worldwide (collectively, “Planet Cyber,” “we,” “our” or “us”) and you (“you”, “your” or “Customer”).  You represent and warrant to us that: (a) you are least eighteen (18) years of age; (b) you are eligible to register and use the Products and Services and have the right, power, and ability to enter into and perform under the Agreement and (c) your use of the Products and Services will be in compliance with the terms and conditions of the Agreement and all applicable laws. If you are acting on behalf of a third party (“Third Party End-User”), you represent and warrant that: (a) you are authorized to make the purchase and enter into this Agreement on behalf of the Third Party End-User as that party’s agent and (b) that the Third Party End-User is bound by this Agreement. If you enter into this Agreement on behalf of a Third Party End-User, you agree that you are jointly and severally liable for any breach of this Agreement resulting from your acts and omissions, or the acts and omissions of the Third Party End-User or any Authorized User (as defined below) of the Third Party End-User.

  1. Customer Account Registration.

You are required to register an account with us (a “Customer Account”) in order to use the Products and Services. During registration of a Customer Account, you agree to provide accurate and complete information in response to our questions, and you further agree to promptly update this information should it change. In connection with use of the Customer Account, a Customer may authorize itself and others (collectively, “Authorized Users”) to use the Products and Services on Customer’s behalf. Each Authorized User will establish or be provided a username and password, and may also establish or be provided other access credentials, such as an encryption key (collectively, “Access Credentials”). You will, and will ensure that each of your Authorized Users will, keep the Access Credentials confidential and ensure that they are not disclosed to any third party. You are responsible for the acts and omissions of your Authorized Users. You, and not Planet Cyber, are fully responsible for all activity that occurs under your Customer Account using the Access Credentials, including any loss or deletion of Customer Content (as defined below). We reserve the right to suspend or terminate the Customer Account, or the access of any Authorized User, for any reason, including if any registration information is inaccurate, untrue or incomplete, or if you or any of your Authorized Users fail to maintain the security of any Access Credentials. You agree to, and will ensure that each Authorized User will, notify us at info@PlanetCyber.net immediately upon learning of any unauthorized access to a Customer Account or any other suspected security breach.

  1. Cloud Services.

(a) Access Grant.  Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use Planet Cyber’s cloud services (the “Cloud Services”) solely: (i) for your personal use; (ii) in accordance with the applicable Documentation; and (ii) in accordance with any Restrictions and Requirements applicable to the Cloud Services. Customer’s authorization to use the Cloud Services is non-exclusive, non-transferable, non-sublicensable, terminable and limited to the Restrictions as set forth in the specific Products and Services Documentation.

(b) Software Client.  The Cloud Services require software be installed within your Environment (as defined below) (the “Client Software”). Subject to the terms and conditions of this Agreement, Planet Cyber grants to you a non-exclusive, non-transferable, revocable, fee-bearing, limited license (without the right to sublicense) to install, execute and use the Client Software solely: (i) in object code format; (ii) for your personal use, with no right to make such software available to third parties either by transferring copies thereof or by providing a hosted service; and (iii) in accordance with any Restrictions, Requirements and Documentation applicable to the Cloud Services. Your license in the Client Software is co-terminus with your right to access the Cloud Services for which the Client Software is required.

  1. Access Authorization.

Subject to the terms and conditions of this Agreement, you and your Authorized Users may access and use customer portals (the “Customer Portals”) that are made available to you in connection with the Products and Services, solely for your personal use and solely in accordance with the Documentation. Your authorization to use the Customer Portals is non-exclusive, non-transferable, non-sublicensable and terminable.

  1. Customer Acknowledgements and Obligations.

You acknowledge and agree to the following:

(a) License. You grant to Planet Cyber a worldwide, non-exclusive, royalty-free, fully-paid up, transferable and sublicensable right to use, reproduce and store the Customer Content for the purpose of performing this Agreement, improving the Products and Services. You retain all rights in the Customer Content, subject to the rights granted to Planet Cyber in this Agreement. You may modify or remove the Customer Content via the Customer Account. Customer Content will be irretrievably deleted upon (i) you or your Authorized User’s deletion of Customer Content or (ii) cancellation, termination or non-renewal of the Customer Account or subscription to the Products and Services. Planet Cyber may remove Customer Content at any time, for any reason, with or without notice.

(b) Requirements and Environment. Planet Cyber offers many different Products and Services, with different Restrictions and Requirements, each of which are designed to address the needs of a broad range of customers. You acknowledge and agree that (i) you assessed your data protection needs, network environment and the technical specifications and cost of each of the Products and Services; (ii) you are solely responsible for making the appropriate selection of the Products and Services even if a Planet Cyber representative has provided guidance to you regarding the Products or Services that you select; (iii) you are solely responsible for ensuring that you comply with the applicable Requirements and Restrictions; (iv) you are solely responsible for ensuring that you maintain and operate the information technology infrastructure from which the applicable Products and Services copies, maintains and transfers the Customer Content, including the databases, applications, files, software, computer, server, tablet, smartphone or any other device registered with Planet Cyber (including, to the extent applicable, hardware delivered to you as part of any Product or Service) (collectively, your “Environment”); and (vi) if you exceed the storage allocated to your Customer Account, you acknowledge and agree that Planet Cyber may restrict your ability to back up further data until you reduce your storage usage, add storage packs, or purchase another type of Product and Service with higher or unlimited storage.

(c) Customer Conduct. The Products and Services include functionality that enables you and your Authorized Users to copy, maintain, sync, transfer and upload text, graphics, photos, videos, presentations and other materials or information (“Customer Content”) pursuant to the terms of this Agreement, including the Requirements and Restrictions. You represent and warrant that your Customer Content and you and your Authorized User’s, use of the Planet Cyber website, portals, Products and Services, and the technology related thereto, shall not (i) interfere with the proper working of the Products and Services or impose an unreasonably large load on Planet Cyber’s infrastructure; (ii) give rise to civil or criminal liability, e.g. defamatory, threatening, pornographic, indecent, abusive, libelous or otherwise objectionable actions; (iii) violate or infringe upon any third party right, including any intellectual property right or right of privacy, or that abuses, harasses or stalks any other person; or (iv) initiate a denial of service attack, software viruses or other harmful or deleterious computer code, files or programs such as Trojan horses, worms, time bombs, cancelbots, or spyware.

(d) User Restrictions on Intellectual Property.  You acknowledge and agree that you shall not, and shall ensure your Authorized Users do not: (i) access or use the Products and Services in any manner or for any purpose other than expressly permitted by the Documentation; (ii) change, modify or otherwise create derivative works of all or any portion of the Products and Services; (iii) modify, disassemble, decompile or reverse engineer any part of the Products and Services or apply any other process or procedure to derive source code of any software included in the Products and Services (except solely to the extent permitted by applicable law); (iv) access or use the Products and Services in a way intended to avoid exceeding usage limits or quotas; (v) use the Products and Services in order to build a similar or competitive application or service; (vi) remove, tamper with or alter any disabling mechanism or circumvent any technical protection measures associated with the Products and Services, or otherwise use any tool to enable features or functionalities that are otherwise disabled in the Products and Services; (vii) resell or sublicense the Products and Services (except as solely to the extent permitted by applicable law); or (viii) remove or alter any proprietary notices (e.g., copyright and trademark notices) pertaining to the Products and Services.

(e) Changes to Products and Services. Planet Cyber may periodically update or upgrade the Products and Services. You acknowledge and agree that Planet Cyber may automatically download and install such updates and upgrades onto your device(s) or notify you of the need to update or upgrade your Products and Services and then you or your Authorized Users are solely responsible for applying patches that Planet Cyber makes available. Where applicable, you will grant Planet Cyber access to your device, which provides access tokens or keys, permitting licensed software to run on your device. You acknowledge and agree that Planet Cyber may, at any time and without notice to you, discontinue, suspend or modify the Products and Services, any functionality or feature of the Product and Services or the availability of the Products and Services on any particular device or hardware.

(f) Law Enforcement. If Planet Cyber reasonably suspects that Customer’s Account has been used for an unauthorized, illegal or criminal purpose, or law enforcement requests access to Customer’s Account or Customer Content via a validly issued subpoena, an investigative demand or warrant, you hereby give Planet Cyber express authorization to share information about you, your Customer Account, Customer Content, and any of its transactions with law enforcement.

  1. Fees and Payment.

(a) Fees. You agree to pay all fixed and variable usage-based fees (if any) (collectively, “Fees”) for the Products and Services as specified at the time of purchase. Unless otherwise indicated at the time of purchase, all Fees exclude sales, use, value-add and similar taxes (collectively, “Sales and Use Taxes”), import tariffs, and shipping and handling fees, which shall be your responsibility. You shall indemnify, defend and hold Planet Cyber harmless for any liability or expense Planet Cyber may incur in connection with the failure to pay, or collection of, any Fees, Sales and Use Taxes, import tariffs or shipping and handling fees.

(b) Payment and Credit Cards. For Products and Services purchased directly from Planet Cyber’s website or portals, Planet Cyber may utilize a third party to process credit card payments on Planet Cyber’s behalf (“Payment Provider”). Payment Provider’s policies govern the processing of your payment, and you must refer to those policies and not this Agreement to determine your rights and liabilities. For a list of the Payment Providers Planet Cyber currently uses, please write to info@Planet Cyber.net. You agree to provide Planet Cyber’s Payment Provider with a valid credit card (Visa, MasterCard or any other branded credit card accepted by Planet Cyber) (the “Card-on-File”) as a condition to such transactions. By providing your Card-on-File, you authorize Planet Cyber, through our Payment Provider, to immediately charge the Fees to the Card-On-File for the Initial Term and any Renewal Term (as defined herein).

(c) Subscription Renewals.
(i) Charges for Auto-Renewing Subscriptions.  You acknowledge and agree that your Card-on-File will be automatically charged recurring renewal Fees on the first day of the Renewal Term (as defined herein) unless you cancel your Subscription (as defined herein) or change your auto renewal preferences, either through the password-protected customer portal or by contacting Planet Cyber’s Customer Care Team at 1(818) 999-9000 or info@Planet Cyber.net. If you cancel a Subscription (as defined herein), you will continue to have access to the applicable Products and Services through the end of the then-current term, but you will not be entitled to a refund or credit for any Fees already due or paid.  We reserve the right to change the Fees associated with any Products and Services upon thirty (30) days’ advance notice. Your continued use of the Products and Services after notice of a change to our Fees will constitute your agreement to such changes.
(ii) Maintenance of Card-On-File. You agree to notify us of any changes required to keep your Card-on-File current and accurate. Your failure to maintain your Card-On-File may result in an interruption of your use of the Products and Services.

  1. Term and Termination.

(a) Term. The term of your access to the Products and Services (a “Subscription”) will continue for the period identified at the time of your purchase (the “Initial Term”).  The Subscription will automatically renew for successive terms equal to the applicable Initial Term (each a “Renewal Term”).

(b) Termination for Material Breach. Planet Cyber may terminate this Agreement and your Subscription at its discretion, effective immediately, for non-payment or if you materially breach any provision of this Agreement and do not substantially cure the breach with thirty (30) days after receiving written notice.

(c) Termination Upon Bankruptcy or Insolvency.  Planet Cyber may, at its option, terminate this Agreement immediately upon written notice to you, in the event: (i) you become insolvent or unable to pay your debts when due; (ii) you file a petition in bankruptcy, reorganization or similar proceeding, or, if filed against you, such petition is not removed within ninety (90) days after such filing; or (iii) a receiver is appointed or there is an assignment for the benefit of your creditors.

(d) Suspension. Planet Cyber may, at any time and in its sole discretion, suspend access to any Products and Services for one or all of your Authorized Users, including but not limited to, the following reasons: (i) a threat to the security or integrity of the Products and Services, (ii) you have materially breached this Agreement or (iii) any amount due under this Agreement is not received by Planet Cyber within fifteen (15) days after it was due.

(e) Effects of Termination.  Upon termination or expiration of this Agreement or any Subscription for any reason, (i) any amounts owed to Planet Cyber before such termination or expiration will be immediately due and payable, (ii) all license and access rights granted will immediately cease to exist; (iii) access to Customer Content will immediately cease, (iv) all Customer Content will be irretrievably deleted, and; (v) if your subscription included hardware, you will return the hardware in accordance with the E2 Terms. Those provisions of this Agreement that by their nature are intended to survive termination or expiration of this Agreement or a Subscription shall so survive.

  1.  Security.

We have implemented administrative, physical and technical safeguards designed to secure your Customer Account and Customer Content from accidental loss and from unauthorized access, use, alteration or disclosure. However, we cannot guarantee that unauthorized third parties will never be able to defeat our safeguards or use the Customer Account and Customer Content for improper purposes. You provide your Customer Account details and Customer Content to us at your own risk.  You are solely responsible for safeguarding, and ensuring that your Authorized Users safeguard, the Access Credentials.

  1.  Proprietary Rights.

(a) Reservation of Rights.  You acknowledge and agree that the software, code, hardware, trademarks, trade secrets, proprietary methods and systems used to provide the Products and Services (“our Technology”) and the content made available or displayed by us through the Products and Services, including all text, graphics, images and the look and feel of such Products and Services (collectively “our Content”) are owned by or licensed to Planet Cyber, including all intellectual property rights therein. Nothing in this Agreement or any of the Documentation shall be considered an assignment or other transfer of ownership in and to our Technology or our Content to you, either expressly, or by implication, estoppel, or otherwise.  Other than the authorizations or licenses as may be conferred or granted by us to you in this Agreement or any of the Documentation, Planet Cyber reserves all right, title and interest in and to our Technology and our Content. No right or license is granted by Planet Cyber to you or your Authorized Users to use any Planet Cyber trademark, trade name, service mark, product name or other source designator.

(b) Continuous Development. Planet Cyber may continually develop and provide ongoing innovation to the Products and Services in the form of new features, functionality, and efficiencies. In the event Planet Cyber adds new features or functionality (collectively, “Functionality”) to a particular Product or Service, Planet Cyber may offer the Functionality to you at no additional charge or, if Planet Cyber generally charges customers for such functionality, Planet Cyber may condition your use of the Functionality on the payment of additional Fees.

(c) Feedback. In the course of using the Products and Services, you or your Authorized Users may provide Planet Cyber reports, comments, suggestions or ideas relating the Products and Services (“Feedback”). Planet Cyber shall have no obligation to incorporate Feedback into any Product or Service, and you shall have no obligation to provide Feedback. Planet Cyber shall have no obligation to treat such Feedback as your confidential or trade secret information. You, on behalf of yourself and your successors in interest, grant to Planet Cyber a world-wide, non-exclusive, irrevocable, perpetual, royalty-free and fully paid-up right and license to use, profit from, disclose, publish, or otherwise exploit any Feedback. Without limiting the generality of the foregoing, you agree that its provision of Feedback does not give it any intellectual property or any other right, title, or interest in or to any aspects of the Products and Services, even if such Feedback leads Planet Cyber to create new Products or Services. No representations, warranties, or indemnities as may be granted by either party to the other under this Agreement or the Documents shall apply to Feedback.

(d) Open Source Software. The Products and Services may contain redistributables, agents or other code resident on your devices that includes open source software. Some of the provisions of the licenses granted to Planet Cyber may apply to your use of such open source software.

  1. General Disclaimers.

THE USE OF “PLANET CYBER” AS DESCRIBED MEANS PLANET CYBER, ITS AFFILIATES, PARTNERS, PROCESSORS, SUPPLIERS, AND LICENSORS (AND THEIR RESPECTIVE SUBSIDIARIES, AFFILIATES, AGENTS, DIRECTORS AND EMPLOYEES). THE PRODUCTS AND SERVICES ARE PROVIDED “AS IS” WITHOUT REPRESENTATION OR WARRANTY OF ANY KIND, WHETHER EXPRESS, IMPLIED OR STATUTORY. WITHOUT LIMITING THE FOREGOING, PLANET CYBER SPECIFICALLY DISCLAIMS ANY IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, NON-INFRINGEMENT, TITLE AND QUIET ENJOYMENT OR FROM A COURSE OF DEALING, COURSE OF PERFORMANCE OR USAGE IN TRADE.  PLANET CYBER DOES NOT WARRANT (AND SPECIFICALLY DISCLAIMS) THAT THE PRODUCTS AND SERVICES ARE ACCURATE, RELIABLE OR CORRECT, THAT THE PRODUCTS AND SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE PRODUCTS AND SERVICES WILL BE AVAILABLE AT ANY PARTICULAR TIME OR LOCATION, BE UNINTERRUPTED, ERROR-FREE OR WITHOUT DEFECT,  THAT ANY DEFECTS OR ERRORS WILL BE CORRECTED, THAT THE PRODUCTS AND SERVICES ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS, OR THAT ANY ENCRYPTION ALGORITHMS, ASSOCIATED KEYS AND OTHER SECURITY MEASURES WILL BE SECURE OR EFFECTIVE OR THAT THE PRODUCTS AND SERVICES GENERALLY WILL BE SECURE. PLANET CYBER DOES NOT WARRANT THAT THE PRODUCTS AND SERVICES: (i) WILL RUN PROPERLY ON ALL HARDWARE OR INFORMATION TECHNOLOGY ENVIRONMENTS; OR (ii) WILL MEET YOUR NEEDS OR REQUIREMENTS OR THOSE OF YOUR AUTHORIZED USERS; OR (iii) WILL OPERATE IN COMBINATIONS THAT MAY BE SELECTED FOR USE BY YOU OR YOUR AUTHORIZED USERS.

  1. Specific Disclaimers.

(a) YOU ASSUME ALL RESPONSIBILITY FOR THE SELECTION AND USE OF AND RESULTS OBTAINED FROM THE PRODUCTS AND SERVICES.

(b) YOUR ACCESS TO AND USE OF THE PRODUCTS AND SERVICES ARE AT YOUR SOLE DISCRETION AND RISK AND YOU ARE SOLELY RESPONSIBLE FOR ANY DAMAGE TO YOUR DEVICE OR ENVIRONMENT, ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES, AND THE LOSS OR DAMAGE OF YOUR CUSTOMER CONTENT.

(c) DEPENDING ON THE PRODUCTS AND SERVICES YOU CHOOSE TO UTILIZE, YOUR CONTENT MAY NOT BE AVAILABLE OR RESTORABLE IF:
(i) THE PRODUCTS OR SERVICES HAVE NOT COMPLETED COPYING, SYNCING, TRANSFERRING, OR UPLOADING (COLLECTIVELY, “BACKUP”) YOUR CUSTOMER CONTENT;
(ii) FOR FILES, FOLDERS, DATABASES, SERVERS, OR DRIVES THAT THE PRODUCTS AND SERVICES DO NOT AUTOMATICALLY BACK UP PURSUANT TO THE DOCUMENTATION, YOU DO NOT MANUALLY SELECT FOR BACKUP OR YOU DESELECT CERTAIN FILES, FOLDERS, DEVICES, DATABASES, SERVERS OR DRIVES FOR BACKUP;
(iii) YOU DELETE CERTAIN CUSTOMER CONTENT FROM YOUR DEVICE AND DO NOT RESTORE IT AFTER DELETION PURSUANT TO PLANET CYBER’S OR YOUR OWN DATA RETENTION POLICIES, OR YOU DELETE A DEVICE, DATABASE, DRIVE, OR SERVER FROM CUSTOMER’S ACCOUNT;
(iv) YOU MOVE CUSTOMER CONTENT TO A LOCATION ON YOUR DEVICE THAT IS NOT AUTOMATICALLY SCANNED TO SELECT FILES FOR BACKUP, OR YOU UPGRADE YOUR OPERATING SYSTEM RESULTING IN CHANGES TO YOUR FILE MAPPING;
(v) CUSTOMER’S CONTENT IS CORRUPTED;
(vi) YOUR DEVICE IS UNABLE TO ACCESS THE INTERNET OR NETWORK SERVICE OR HAS EXPERIENCED INTERMITTENT OR SLOW INTERNET CONNECTION;
(vii) ANY HARDWARE PROVIDED TO YOU AS PART OF THE PRODUCTS AND SERVICES IS UNABLE TO CONNECT TO YOUR DEVICES AND YOU DO NOT TAKE STEPS NECESSARY TO CORRECT SUCH PROBLEM;
(viii) YOUR DEVICE OR HARDWARE IS UNABLE TO MAKE A CONNECTION WITH PLANET CYBER’S SERVERS OR NETWORK;
(ix) YOU FAIL TO FOLLOW PLANET CYBER’S TECHNICAL REQUIREMENTS AND THE DOCUMENTATION FOR UTILIZING THE PRODUCTS AND SERVICES, INCLUDING UPGRADING THE PRODUCTS AND SERVICES OR FAILING TO PERIODICALLY TEST YOUR BACKUPS AND RESTORES OR TO ENSURE THAT CERTAIN CUSTOMER CONTENT IS BACKED UP; OR
(x) YOU TERMINATE OR FAIL TO RENEW YOUR SUBSCRIPTION TO ANY PRODUCT OR SERVICE, OR YOUR ACCESS TO THE PRODUCTS AND SERVICES HAS OTHERWISE BEEN TERMINATED OR SUSPENDED.

(d)  THE PRODUCTS AND SERVICES MAY ACCESS AND TRANSFER INFORMATION OVER THE INTERNET. YOU ACKNOWLEDGE AND AGREE THAT PLANET CYBER DOES NOT OPERATE OR CONTROL THE INTERNET AND THAT: (i) VIRUSES, WORMS, TROJAN HORSES AND OTHER UNDESIRABLE DATA OR COMPONENTS; OR (ii) UNAUTHORIZED USERS (E.G., HACKERS) MAY ATTEMPT TO OBTAIN ACCESS TO AND DAMAGE YOUR CUSTOMER CONTENT, WEBSITES, DEVICES AND NETWORKS. YOU ACKNOWLEDGE AND AGREE PLANET CYBER IS NOT RESPONSIBLE FOR SUCH ACTIVITIES.

(e) YOU ACKNOWLEDGE AND AGREE TO PLANET CYBER’S USE OF CYBERSOURCE, A SUBSIDIARY OF VISA, AND LITLE & CO., A SUBSIDIARY OF VANTIV, TO PROCESS AND STORE YOUR CREDIT CARD INFORMATION. IN THE EVENT OF A SECURITY BREACH INVOLVING YOUR CREDIT CARD INFORMATION, YOU ACKNOWLEDGE AND AGREE THAT YOUR SOLE RECOURSE IS AGAINST THESE THIRD-PARTY VENDORS WHO PROCESS AND STORE YOUR CREDIT CARD INFORMATION, AND NOT PLANET CYBER.

(f)  YOU ARE SOLELY RESPONSIBLE FOR THE SECURITY AND INTEGRITY OF THE CUSTOMER ACCOUNT, CUSTOMER’S CONTENT, DEVICES AND ANY HARDWARE PROVIDED AS PART OF THE PRODUCTS AND SERVICES. YOU ACKNOWLEDGE AND AGREE THAT PLANET CYBER SHALL HAVE NO LIABILITY ASSOCIATED WITH OR ARISING FROM YOUR FAILURE TO MAINTAIN ACCURATE CUSTOMER ACCOUNT INFORMATION OR OTHER INFORMATION, INCLUDING, BUT NOT LIMITED TO, YOUR FAILURE TO RECEIVE CRITICAL COMMUNICATION ABOUT THE PRODUCTS AND SERVICES.
(g) YOU ACKNOWLEDGE AND AGREE THAT NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY PLANET CYBER OR ANY PLANET CYBER EMPLOYEE, PARTNER OR AGENT WILL CREATE ANY WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF PLANET CYBER’S OBLIGATIONS HEREUNDER.

  1. Disclaimers of and Limitations on Certain Remedies.

(a) No Consequential and Similar Damages.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, IN NO EVENT WILL PLANET CYBER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY INDIRECT, CONSEQUENTIAL, INCIDENTAL, PUNITIVE, EXEMPLARY, SPECIAL OR ANY OTHER DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR PERSONAL INJURY, LOST PROFITS, LOSS OF DATA, LOSS OF CUSTOMER CONTENT, LOSS OF USE, LOST REVENUE, BUSINESS INTERRUPTION OR PROPERTY OR ENVIRONMENT DAMAGE ARISING OUT OF OR RELATED TO YOUR USE OF THE PRODUCTS AND SERVICES, EVEN IF PLANET CYBER HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES (WHETHER SUCH CLAIM IS BASED ON WARRANTY, CONTRACT, TORT (INCLUDING, BUT NOT LIMITED TO, NEGLIGENCE) OR OTHERWISE).

(b) No Procurement of Substitute Services or Customer Content.  IN NO EVENT WILL PLANET CYBER BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST TO PROCURE SUBSTITUTE PRODUCTS OR SERVICES, CUSTOMER CONTENT, LOST OR DAMAGED CUSTOMER CONTENT OR THE COST OF RETRIEVING LOST CUSTOMER CONTENT.  UNDER NO CIRCUMSTANCES WILL PLANET CYBER BE RESPONSIBLE FOR ANY DAMAGE, LOSS OR INJURY RESULTING FROM HACKING, TAMPERING OR OTHER UNAUTHORIZED ACCESS OR USE OF THE PRODUCTS AND SERVICES, YOUR CUSTOMER ACCOUNT OR THE CUSTOMER CONTENT.

(c) Limitation on Aggregated Damages.  TO THE MAXIMUM EXTENT PERMITTED BY LAW, AND WITHOUT LIMITING THE FOREGOING, THE ENTIRE LIABILITY OF PLANET CYBER FOR ALL DAMAGES OF EVERY KIND AND TYPE (WHETHER ARISING IN CONTRACT, BREACH OF WARRANTY OR TORT (INCLUDING NEGLIGENCE AND STRICT LIABILITY)) WILL BE LIMITED TO THE LESSER OF: (i) THE FEES PAID BY YOU TO PLANET CYBER IN THE THREE (3) CALENDAR MONTHS IMMEDIATELY PRIOR TO THE DAMAGES ARISING; OR (ii) FIVE HUNDRED DOLLARS ($500.00).  IF THE PRODUCTS AND SERVICES ARE PROVIDED TO YOU WITHOUT CHARGE, THEN PLANET CYBER WILL HAVE NO LIABILITY TO YOU WHATSOEVER. THE FOREGOING LIMITATIONS SET A LIMIT ON THE AMOUNT OF DAMAGES PAYABLE AND ARE NOT INTENDED TO ESTABLISH LIQUIDATED DAMAGES.

(d) YOU EXPRESSLY RECOGNIZE AND ACKNOWLEDGE THAT THE DISCLAIMERS AND LIMITATIONS SET FORTH IN THIS SECTION ARE AN ESSENTIAL PART OF THE AGREEMENT AND AN ESSENTIAL FACTOR IN ESTABLISHING THE PRICE OF THE PRODUCTS AND SERVICES AND PLANET CYBER’S WILLINGNESS TO PROVIDE YOU THE PRODUCTS AND SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES OR THE LIMITATION ON HOW LONG AN IMPLIED WARRANTY LASTS, THEREFORE SOME OF THE FOREGOING TERMS MAY NOT APPLY TO YOU.

(e) THE FOREGOING DISCLAIMERS AND LIMITATIONS WILL APPLY TO THE FULLEST EXTENT PERMITTED UNDER APPLICABLE LAW AND NOTWITHSTANDING A FAILURE OF ESSENTIAL PURPOSE OF ANY REMEDY PROVIDED IN THIS AGREEMENT.

  1. Indemnity.

You will indemnify, defend, and hold Planet Cyber (and its processors, respective employees, directors, agents, affiliates and representatives) harmless from and against any and all claims, costs, losses, damages, judgments, tax assessments, penalties, interest and expenses (including, without limitation, reasonable attorneys’ fees) arising out of any claim, action, audit, investigation, inquiry or other proceeding instituted by a person or entity that arises out of or relates to: (a) any actual or alleged breach of your representations, warranties or obligations set forth in this Agreement; (b) your wrongful or improper use of the Products and Services; (c) your violation of any third party’s rights, including without limitation, any right of privacy, publicity rights or intellectual property rights; (d) your violation of any law, rule or regulation of the United States or any other country; (e) any other party’s access and/or use of the Products or Services using your Access Credentials or the Access Credentials of any of  your Authorized Users and (f) use of your Customer Content. Planet Cyber reserves the right, at your expense, to assume the exclusive defense and control of any matter for which you are required to indemnify Planet Cyber and you agree to cooperate with Planet Cyber’s defense of these claims. You agree not to settle any matter without Planet Cyber’s prior written consent. Planet Cyber will use reasonable efforts to notify you of any such claim, action or proceeding upon becoming aware of it.

  1. Dispute Resolution.

Please read the following arbitration agreement in this Section 19 carefully (“Arbitration Agreement”).  It requires you to arbitrate disputes with Planet Cyber and limits the manner in which you can seek relief from us.

(a) Applicability of Arbitration Agreement, Rules and Forum. You agree that any dispute or claim relating in any way to this Agreement, including but not limited to, arbitrability of the matter or the formation, interpretation, scope, applicability, termination or breach of this Agreement, your access or use of the Products and Services, or to any aspect of your relationship with Planet Cyber, will be resolved by binding arbitration, rather than in court. This Arbitration Agreement will apply to all claims that arose or were asserted before the effective date of this Agreement or any prior version of this Agreement. Such disputes and claims shall be referred to and finally determined by arbitration in accordance with the JAMS Streamlined Arbitration Rules and Procedures, or JAMS International Arbitration Rules, if the matter is deemed “international” within the meaning of that term as defined in the JAMS International Arbitration Rules. The arbitration shall be administered by JAMS, shall take place before a sole arbitrator, and shall be conducted in Boston, Massachusetts. If the JAMS International Arbitration Rules apply, the language to be used in the arbitral proceedings will be English. Judgement upon the arbitral award may be entered by any court having jurisdiction.

(b) Waiver of Jury Trial.  YOU AND PLANET CYBER HEREBY WAIVE ANY CONSTITUTIONAL AND STATUTORY RIGHTS TO SUE IN COURT AND HAVE A TRIAL IN FRONT OF A JUDGE OR A JURY. You and Planet Cyber are instead electing that all claims and disputes will be resolved by final, binding arbitration under this Arbitration Agreement. An arbitrator can award on an individual basis the same damages and relief as a court and must follow this Agreement as a court would. However, there is no judge or jury in arbitration and court review of an arbitration award is subject to very limited review.

(c) Waiver of Class or Consolidated Actions.  IF YOU AGREE TO THIS AGREEMENT AND/OR USE THE PRODUCTS AND SERVICES, YOU ARE AGREEING IN ADVANCE THAT YOU WILL NOT PARTICIPATE IN OR SEEK TO RECOVER MONETARY OR OTHER RELIEF IN ANY LAWSUIT FILED AGAINST PLANET CYBER ALLEGING CLASS, COLLECTIVE AND/OR REPRESENTATIVE CLAIMS ON YOUR BEHALF. INSTEAD, BY AGREEING TO ARBITRATION, YOU MAY BRING YOUR CLAIMS AGAINST PLANET CYBER IN AN INDIVIDUAL ARBITRATION PROCEEDING.  CLAIMS OF MORE THAN ONE CUSTOMER OR USER CANNOT BE ARBITRATED OR CONSOLIDATED WITH THOSE OF ANY OTHER CUSTOMER OR USER. YOU ACKNOWLEDGE THAT YOU HAVE BEEN ADVISED THAT YOU MAY CONSULT WITH AN ATTORNEY IN DECIDING WHETHER TO ACCEPT THIS AGREEMENT PRIOR TO USING THE PRODUCTS AND SERVICES, INCLUDING THIS ARBITRATION AGREEMENT. If a court decides that applicable law precludes enforcement of any of this Section’s limitations as to a particular claim for relief, then that claim (and only that claim) must be severed from the arbitration and may be brought in court, subject to your and Planet Cyber’s rights to appeal the court’s decision. All other claims will be arbitrated.

(d) Severability. Except as otherwise provided under the terms and conditions of this Arbitration Agreement, if any part or parts of this Arbitration Agreement are found under the law to be invalid or unenforceable, then such specific part or parts will be of no force and effect and will be severed and the remainder of the Arbitration Agreement will continue in full force and effect.

(e) Survival of Agreement.This Arbitration Agreement will survive the termination of your relationship with Planet Cyber.

(f) Modification.  Notwithstanding any provision in this Agreement to the contrary, it is agreed that if Planet Cyber makes any future material change to this Arbitration Agreement, it will not apply to any individual claim(s) already in progress or that you have has already provided written notice to Planet Cyber.

  1. Governing Law.

These General Terms and any dispute arising hereunder will be governed by the laws of the  California and/or applicable federal law (including the Federal Arbitration Act) without regard to its choice of law or conflicts of law principles. To the extent the parties are permitted under this Agreement to initiate litigation in a court, both you and Planet Cyber agree that all claims and disputes arising out of or relating to the Agreement will be litigated exclusively in the state or federal courts located in Los Angeles, Calfornia.

  1. Electronic Communications.

By using the Products and Services, you acknowledge that we communicate with you electronically to the email address provided in your Customer Account. It is your responsibility to keep your email address current for notice purposes. For contractual purposes, you (a) consent to receive communications from Planet Cyber in an electronic form and (b) agree that all terms and conditions, agreements, notices, disclosures, and other communications that Planet Cyber provides to you electronically satisfies any legal requirement that such communications would satisfy if it were to be in writing. You agree that all disclosures, notices and communications are considered received by you within twenty-four (24) hours of the time posted to Planet Cyber’s website, or within twenty-four (24) hours of the time emailed to you.

  1. Contacting Planet Cyber.

To contact Planet Cyber regarding this Agreement (i) email info@PlanetCyber.net or (ii) write to PLANET CYBER 6911 TOPANGA CANYON BLVD. #103 CANOGA PARK CA 91303, Attn: Contracts.

  1. Assignment.

This Agreement, and any rights and licenses granted hereunder, may not be transferred or assigned by you and any attempted transfer or assignment will be null and void.  We may assign this Agreement to any person or entity that is an affiliate, or acquires by sale, merger or otherwise, all or substantially all or a portion of our assets, stock or business. If another entity merges with or acquires Planet Cyber, or all, substantially all or a portion of Planet Cyber’s assets, stock or business you agree your encrypted stored data and information that Planet Cyber has collected from you, including personally identifiable information, may, and you consent to, the secure transfer of such information to such successor or assignee.

  1. Force Majeure.

Any delay in the performance of any duties or obligations of either party (except the payment of money owed) will not be considered a breach of this Agreement if such delay is caused by a labor dispute, shortage of materials, fire, earthquake, flood, or any other event beyond the control of such party. The affected party will use reasonable efforts, under the circumstances, to notify the other party of the circumstances causing the delay and to resume performance as soon as possible.

  1. Other Provisions.

These General Terms, the Product and Service Specific Terms, and the Documentation, are a complete statement of the agreement between you and Planet Cyber regarding the Products and Services and the matters covered in this Agreement. You acknowledge and agree there are no third-party beneficiaries to this Agreement. If any provision of the Agreement is invalid or unenforceable under applicable law, then it will be changed, interpreted or severed, as appropriate to accomplish the objectives of such provision to the greatest extent possible under applicable law, and the remaining provisions will continue in full force and effect. This Agreement does not limit any rights that we may have under trade secret, copyright, patent, or other laws. No waiver of any term of these General Terms will be deemed a further or continuing waiver of such term or any other term.