HYBIR Terms Of Use

This LICENSE AND ACCESS AGREEMENT (“Agreement”) is made by and between Hybir, Inc., a Colorado corporation (“Hybir”), and the party ordering access to and use of Hybir’s proprietary software and online software functionality by indicating its acceptance to be bound by the terms and conditions of this Agreement  (“Customer”).  This Agreement is made effective as of the date of Customer’s acceptance of this Agreement (“Effective Date”).  Hybir and Customer may each be referred to individually as a “Party,” and collectively as the “Parties.”

1          LICENSE TO INSTALL, ACCESS AND USE.       

1.1       Customer has through the internet ordered download privileges and remote access to and use of certain proprietary software and related functionality, storage and associated services offered by Hybir and at the service level selected by Customer (collectively, the “Services”).  Accordingly, subject to Customer’s continued compliance with this Agreement and with the Policies (as defined below), Hybir hereby grants solely to Customer a non-exclusive, non-transferable, limited right and license to download and install one copy of the Hybir Backup software (the “Software”), and to use the Software solely for purposes of accessing and using the Services.  The Software may be installed and used solely on one standalone, un-networked desktop or laptop computer identified by Customer when subscribing to the Services, and the Services may be used solely for such standalone computer.

1.2       Customer will be solely responsible for maintaining the confidentiality and security of its unique access codes and logins to the Services, and for maintaining security and confidentiality of the Software.  Customer’s login and password are unique to Customer, and are not transferable by or shareable among Customer and third parties.   Customer is solely responsible for obtaining internet access and services and providing all other hardware, software and networks necessary to remotely access the Services.

1.3  Hybir retains the right at any time, without prior notice, to limit or restrict the bandwidth consumed by Customer to access and/or use the Services.

2          RESTRICTIONS.      

All rights and licenses granted to Customer to use the Software and to thereby access and use the Services are conditioned on compliance with the terms and condition of this Agreement, including the following:

2.1        Customer shall be fully responsible for all acts and omissions of any party gaining access to or use of the Services by way of the unique access codes selected or the account established by Customer.

2.2 Customer may only use the Software in conjunction with and for purposes of accessing and using the Services. All other uses of the Software are strictly prohibited. 

2.3 Customer may only use the Software and access and use the Services for backing up Customer’s hard drive on the identified standalone computer, for Customer’s person and/or internal business purposes. Customer shall not allow access to or use of the Software or Services by anyone or use or allow the use of the Software or Services to perform backup, disaster/data recovery services for any third party or for any purpose other than Customer’s personal and/or internal business

2.4 In no event may Customer allow a competitor of Hybir or a third party research, analysis, or certification provider to access or use the Software or the Services for purposes of monitoring or measuring availability, performance, features, speed, accuracy, functionality, or for any other benchmarking, comparative or competitive purpose.

2.5 The Software and the Services contain confidential, proprietary, and/or trade secret information of Hybir, and are furthermore protected by copyrights. Customer may use that information only for the purposes of exercising its express rights under this Agreement. Customer shall not, and shall not allow any party to, make permanent or stored copies of the code or programming contained in the Services, or disclose to or allow the copy of the Software by any third party, or attempt to reverse engineer, disassemble, decompile, reverse translate, or otherwise attempt to discern the source code or any other proprietary information or non-public code embodied in the Software or any aspect of the Services. 

2.6 Customer shall not, nor allow any other party to, modify, adapt, or create any derivative works of any portion of the Software or the Services or of any documentation or literature made available by Customer in connection therewith. If any such modifications, adaptations, or derivative works are made, they shall automatically and without any further action be the sole and exclusive property of Hybir, and Customer shall and hereby does assign exclusively to Hybir all right, title, and interest, including all copyrights, embodied in such modifications, adaptations, or derivative works.

2.7 Except as otherwise specifically set forth in this Agreement, Customer shall bear the entire risk of use of the Software and the Services. Customer assumes complete responsibility for maintaining the security of Customer's account and login credentials.

2.8 Customer shall not, and shall not allow others to, use the Software or the Services for or in connection with: (i) any illegal activity; (ii) transmission or storage of any material that violates applicable laws, is infringing, obscene, threatening, libelous, or otherwise unlawful or tortuous; (iii) transmission or storage of any material that is harmful to children or violates third-party proprietary or privacy rights; (iv) transmission or storage of any material that contains viruses, worms, Trojan horses, or other harmful computer code, files, scripts, agents, or programs; (i) any activity that interferes with or disrupts the integrity, performance, or availability of the Software or the Services or data contained therein; or (vi) any activity that willfully or otherwise seeks to gain unauthorized access to the Software or the Services, exceed the authorized scope of access to the Software or the Services, or exceeds authorized scope of access to related systems or networks. 

2.9 Customer shall not take or allow any action that attempts to defeat, disable, or circumvent any security measures that restrict or prevent unauthorized access to, corruption, use or copying of any portion of the Software, the Services or data stored thereon.

2.10 The license to install and use the Software, and to access and use the Services is personal to Customer. Customer may not transfer, sublicense, assign, or deliver, directly, indirectly, by operation of law, or otherwise (e.g., by merger, sale of stock or other ownership interests, acquisition, dissolution), such license in whole or in part to any other person or entity without Hybir's prior written consent which may be withheld for any or no reason. Any such assignment or transfer by Customer (i) shall be null and void; and (ii) shall not release Customer from its obligations or liabilities under this Agreement.

3          CONFIDENTIALITY.

3.1 Customer acknowledges that the Software and the Services, including the software applications and computer code, non-public features, functionality, and design and architecture incorporated or embodied therein, are confidential, proprietary, and valuable trade secrets of Hybir (“Confidential Information”). Customer agrees not to disclose any Confidential Information to any third party and not to use any Confidential Information for any purpose other than the performance of Customer's obligations and exercise of Customer's express rights under this Agreement. The Parties further acknowledge and agree that any use or disclosure of Confidential Information in violation of this provision would cause irreparable harm to Hybir that could not be adequately compensated by monetary damages, and that in addition to other available remedies, Hybir shall be entitled to injunctive or other equitable relief to prevent or limit such use or disclosure. Customer's obligations under this Agreement shall not apply to information which: (i) is or becomes part of the public domain through no action or omission of Customer; (ii) is rightfully obtained by Customer from a third party who is lawfully in possession of such information without restriction; or (iii) can be demonstrated to have been independently developed by Customer without use of or reference to any Confidential Information. Customer's obligations under this Section shall survive termination of this Agreement.

3.2 Hybir agrees not to disclose to any third party, and not to use for any purpose other than the performance of Hybir's obligations and exercise of Hybir's rights under this Agreement, any material or data of Customer stored or backed up by Customer using the Services and to which Hybir has access in connection with Hybir's performance of its obligations under this Agreement.

3.3 Hybir retains the right, but not the obligation, to retain copies of obsolete or deleted files, subject solely to its obligations of confidentiality hereunder.

4           PAYMENT.

4.1 Customer’s download of the Software and enrollment and subscription to the Services require submittal of a valid credit card number and standing authorization for Hybir to monthly charge Customer’s credit card for monthly invoiced amounts. Customer will be invoiced for such number of hard drives and/or level of Services as selected by Customer in its order form at the time of enrollment for the Services. Customer may amend its order for Services by accessing its online account with Hybir and making changes as applicable. Hybir will monthly issue Customer electronic invoices based on Customer’s orders, and will concurrently therewith charge the invoiced amount against Customer’s account credit card. Customer understands and agrees that all payment obligations are non-cancellable and all amounts paid are nonrefundable. Hybir reserves the right to modify its fee schedule by a minimum ten (10) days prior written notice, and at any time to introduce new charges, to add, delete or alter any feature, functionality or any other aspect of the Software and/or the Services at any time.     

4.2 Customer will be responsible for any sales, use, or other taxes (other than taxes based on Hybir's net income) associated with each payment or the underlying transactions in this Agreement giving rise to any payment becoming due.

4.3 Customer agrees at all times to maintain current and complete and accurate billing and contact information, including legal company name, street address, email address, and name and telephone number of an authorized billing contact.

5          DISCLAIMERS.

5.1 HYBIR PROVIDES THE SOFTWARE AND ALL SERVICES, STORAGE, DATA, MATERIALS, AND DOCUMENTATION ON AN “AS IS” BASIS AND EXPRESSLY DISCLAIMS ALL WARRANTIES AND CONDITIONS OF ANY KIND, EXPRESS OR IMPLIED, INCLUDING WITHOUT LIMITATION THE IMPLIED WARRANTIES OF TITLE, NONINFRINGEMENT, ACCURACY, MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, UPTIME AND AVAILABILITY. HYBIR DOES NOT WARRANT THAT THE SOFTWARE OR SERVICES WILL MEET CUSTOMER'S REQUIREMENTS OR THAT THE OPERATION OF THE SOFTWARE OR SERVICES WILL BE ERROR-FREE OR UNINTERRUPTED (INCLUDING BUT NOT LIMITED TO ANY PROBLEMS INHERENT IN THE USE OF THE INTERNET AND/OR ELECTRONIC COMMUNICATIONS). CUSTOMER ACKNOWLEDGES THAT THE SOFTWARE AND THE SERVICES CONSTITUTE TOOLS, THE CORRECTNESS AND USABILITY OF WHOSE OUTPUT IS CUSTOMER'S SOLE RESPONSIBILITY. Customer acknowledges that it has not entered into this Agreement in reliance upon any warranty or representation. Each description of the Software, Services or components thereof and any written material used to facilitate or promote the Software, Services or components thereof are for the sole purposes of identification and are not to be construed as warranties.

5.2 The sole and exclusive remedy of Customer, and the sole liability and obligation of Hybir to Customer, for any matter arising under this Agreement or in any way related to the Software, Services or Customer’s data, will be for Customer to notify Hybir of any problem, and if Hybir does not remedy the problem within a reasonable period of time, for Customer to terminate this Agreement and cease all access to and use of the Services.

5.3 Customer shall have sole responsibility for the accuracy, quality, integrity, legality, reliability, appropriateness, and any right to use and store, all of its data, applications, and file through the Software and the Services. Hybir shall not be responsible or liable in any respect for the deletion, correction, destruction, damage, loss, or failure to store, any Customer data, applications or files.

6          LIMITATION OF LIABILITY AND INDEMNIFICATION.

6.1 IN NO EVENT SHALL HYBIR OR ITS AFFILIATES, CONTRACTORS, OR AGENTS BE LIABLE TO CUSTOMERS OR ANY OTHER PARTY FOR ANY INCIDENTAL, INDIRECT, EXEMPLARY, SPECIAL OR CONSEQUENTIAL DAMAGES, EVEN IF HYBIR HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, IN CONNECTION WITH THIS AGREEMENT, THE SOFTWARE, THE SERVICES, OR IN ANY MANNER RELATED HERETO, INCLUDING WITHOUT LIMITATION, ANY CLAIM FOR INACCURACY, MISREPRESENTATION OR CORRUPTION OF DATA, LOSS OF PROFITS, DATA, FILES, APPLICATIONS, BUSINESS, OR GOODWILL. IN ADDITION, THE LIABILITY OF HYBIR, ITS EMPLOYEES, CONTRACTORS, AND ALL PERSONS AND ENTITIES AFFILIATED OR ASSOCIATED WITH ANY OF THEM, FOR LOSSES, DAMAGES, LIABILITIES, SUITS AND CLAIMS, REGARDLESS OF THE FORM OF ACTION (AND WHETHER BASED UPON THEORIES OF CONTRACT, NEGLIGENCE, OR TORT) AND THE PERSON OR ENTITY BRINGING SUCH ACTION, SHALL NOT EXCEED THE TOTAL AMOUNT PAID BY CUSTOMER TO HYBIR DURING THE PRIOR SIX MONTH PERIOD FOR THE SERVICES THAT ARE THE SUBJECT OF THE CLAIM OR CAUSE OF ACTION.

6.2 Customer agrees to defend, indemnify, and hold Hybir and employees, owners, directors, officers, agents, affiliates, and attorneys harmless from and against any loss, liability, cost, expense, or other damages (including attorneys’ fees and costs) arising from or incurred in connection with any claim or proceeding based on the access to or use of the Software or Services by Customer and any party gaining access to the Software or Services by use of Customer’s account, login or access codes, or based on any act or omission constituting breach of this Agreement by Customer.

7          TERM AND TERMINATION.

7.1 Subject to Customer's continuing compliance with the terms and condition of this Agreement and the terms of the Policies, this Agreement and the license to use the Software, and the right to access and use the Services granted to Customer under Section 2, above shall commence on the Effective Date and shall continue on a month to month basis, until terminated in accordance with the terms of this Agreement.

7.2 This Agreement and all rights granted to Customer hereunder may be terminated by either Party at any time by a thirty (30) day notice to the other, or by either party effective immediately in the event of a material breach of this Agreement (including a breach of Customer’s payment obligations or terms of the Policies) by the other Party. Hybir may furthermore immediately and without prior notice suspend or terminate all or a portion of Customer’s license and access rights to the Services or any other privileges of subscription to the Services, if Customer has not timely paid its invoice in full, and at any time if Hybir believes in good faith that doing so is necessary to maintain or protect the integrity or security of the Services or to compel compliance with the Policies. Following any termination of this Agreement, Customer's rights to use the Software and to access or use its data and other material stored on the Services will immediately cease, and Hybir shall have no obligation to maintain or deliver any data or other material to Customer, unless Customer timely requests same and makes arrangements therefore subject to payment of Hybir’s then prevailing professional service fees. In no event will Hybir be obligated to retain any Customer data beyond 30 days after termination of this Agreement.

7.3 Upon termination of this Agreement, Hybir will terminate and disable all access codes and logins for Customer, and all of Customer’s access to the Services will terminate. Furthermore, Customer shall upon any termination expunge and delete from its systems all copies of the Software and certify to Hybir in writing that no portion or copy of the Software is retained by Customer following termination. Termination of this Agreement will not impact any payment or other unfulfilled obligation of Customer. All remedies of Hybir hereunder are cumulative and in addition to all other remedies available to Hybir in law or in equity.

8          MISCELLANEOUS.

8.1 The terms of this Agreement may not be altered by any course of performance, by any course of dealing, or by any usage of trade. Hybir's failure to enforce a provision of this Agreement shall not be construed as a waiver of Hybir's rights to enforce such provision. No terms in any order form or communication from Customer will serve to modify this Agreement in any manner. Customer may not assign this Agreement in whole or in part without the prior written approval of Hybir, which may be withheld in Hybir’s sole discretion. Any unapproved assignment by Customer shall be null and void.

8.2 Regardless of the place of performance, this Agreement shall be governed by, and be construed and enforced in accordance with the laws of the State of Colorado (excluding its choice of law rules). For any dispute that may arise under this Agreement, Customer submits to the exclusive personal and subject matter jurisdiction of the state and federal courts located in Denver, Colorado and waives any jurisdictional, venue, immunity, or inconvenient forum objections to such courts.

8.3 In no event shall either Party be liable to the other for delay in the performance (other than the obligation to make timely payment) when the delay is caused by matters beyond such Party's control, including but not limited to, acts of God, fire, strikes, war, Internet failures, communications failures, power outages, interruptions in service or inability to obtain necessary labor or materials.

8.4 Customer authorizes Hybir to identify Customer as a subscriber and user of the Services, and to use Customer’s marks and logos in connection therewith.

8.5 In the event that any portion of this Agreement is held unenforceable, the unenforceable portion shall be amended to the minimum extent necessary to render same enforceable, and the remainder of this Agreement shall remain in full force and effect.

8.6 Any notice or other communication under this Agreement shall be in writing, and shall be sent via facsimile transmission, first class mail, email, online notices (in the case of notices by Hybir only) or professional courier service addressed to Hybir’s principal address as stated on its website, or to Customer’s address indicated in its enrollment for the Services. Such notices shall be deemed effective upon receipt. The Parties expressly agree that agreements may be executed and notices may be given electronically, and that acceptance of this Agreement signifies intent to be accept and be bound by electronic signatures and electronic indications of asset to form a legal contract.

8.7 This Agreement as well as Hybir’s privacy policy and general terms and conditions, and forum participation rules posted on Hybir’s website(collectively, the “Policies”), constitute the entire understandings between the Parties concerning the subject matter of this Agreement, superseding all prior or contemporaneous proposals, communications, and understandings, oral or written. Hybir retains the right to modify and update the Policies from time to time, and Customer’s continued use of the Software, the Services, or participation in Hybir’s forum following such modification or update will constitute Customer’s agreement to be bound by its terms. Hybir furthermore retains the right to require Customer to download new, modified, and/or updated versions of the Software as a condition to maintaining access to and use of the Services. Each modified and or replacement versions of the Software required to be downloaded and installed to maintain access and use of the Services shall be included in the definition of “Software” hereunder, and will be subject to all the terms and conditions in this Agreement governing Customer’s obligations with respect to the Software. Customer hereby consents to updates to the Software being automatically downloaded and installed on Customer’s computer upon logins to the Service.

8.8 The Services are of U.S. origin for purposes of U.S. export laws. Customer agrees to comply with all applicable international and national laws that apply to the Services and/or any data, including U.S. Export Administrative Regulations, as well as end-user, end-use and destination restrictions, and regulations related to privacy, in each case as issued by U.S. and/or other governments.

IF YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS ABOVE, INDICATE YOUR ACCEPTANCE BELOW AND YOU MAY BEGIN DOWNLOADING THE SOFTWARE AND ESTABLISHING YOUR ACCESS CODES AND PREFERENCES TO GAIN ACCESS TO THE SERVICES IN ACCORDANCE WITH YOUR SELECTIONS.