PLEASE READ THE FOLLOWING TERMS AND CONDITIONS BEFORE REGISTERING AND USING THE DISK HERO SERVICE:

You have selected to register for use of the Disk Hero file storage and retrieval service (the "Service"). The Service is provided to you under the terms and conditions set forth in these Terms and Conditions of Use ("Agreement") www.diskhero.com

1. Description of Services
2. Conditions of Use
3. Registration Information/Credit Card Charges
4. Use of IP Addresses
5. Account and Password
6. Security of Stored Data and Files
7. Content of Stored Data and Files
8. Backups of your data
9. Disclaimer of Warranties
10. Limitations of Liability
11. Indemnification
12. Termination
13. Notices
14. Severability
15. Modifications to this Agreement
16. Miscellaneous
    
    

1. Description of Services

Subject to Disk Hero acceptance of Your registration and Your compliance with the terms and conditions of this Agreement, Disk Hero will provide You with the following service (the "Basic Service") : (a) Disk Hero will establish one (1) online storage and online backup account in your name on Disk Hero management software (the "Account"); (b) Disk Hero will initially allow you to store data files in your Account , including sub-accounts (added PC's) for other parties to have access to sections of the account; and (c) Disk Hero will allow You to retrieve data files from Your Account; and (d) If sub-accounts are created by the main account holder, the main account holder is responsible for all the actions arising from the sub-account holders, and will make sure that all the terms and conditions described here are adhered to by the sub-account holders.(e) In Your use of the Service, you are responsible for providing the following: (i) all equipment, such as a computer and modem, necessary to access the World Wide Web; (ii) Your own access to the World Wide Web; and (iii) payment of all telephone or other fees associated with such access. Please note Disk Hero provides an extensive range of services. It is possible that one or more of these services may not be available at certain times.

The Disk Hero software is provided "as is" without warranty of any kind, either expressed or implied, including without limitation warranties of merchantability, fitness for a particular purpose, or non-infringement. Disk Hero makes reasonable efforts to produce useful software as well as accurate and up-to-date on-line documentation regarding the use of such software, Disk Hero does not, however, make any warranties or representations as to its usability, accuracy or completeness. Under no circumstances and under no legal theory shall Disk Hero, or any other party involved in distributing Disk Hero's software and services be liable to you or any other person for consequential damages resulting from your use of this software, services and its documentation.

RISK OF USE
You understand that the software may have errors and may produce unexpected results. You agree that any use of the software and service will be entirely at your own risk.

2. Conditions of Use

You are solely responsible for the content of all data You store or retrieve from, or attempt to store or retrieve from, Your Account and the Public Folders and for all transmissions by You from and to Your Account. Your use of the Service is subject to all applicable local, state, national and international laws and regulations. You will: (a) not use the Service for any illegal purposes; (b) not use the Service to store, retrieve, transmit or view any file, data, image or program that contains: (i) any illegal pictures, materials or information; (ii) any harassing, libelous, abusive, threatening, harmful, vulgar, pornographic, 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 local, state, national or international law or regulation; (iv) any code or material that violates the intellectual property rights of others; (v) any Windows temporary files of any kind (including, without limitation, any *.p or ~*.* files); or (vi) any viruses, worms, "Trojan horses" or any other similar contaminating or destructive features; (c) comply with United States and other applicable law regarding the exportation and re-exportation of any data or other materials from the United States or other jurisdictions through the Service; (d) not use the Service for any shaming, chain letters or other use that may otherwise disrupt the Service or the networks through which You access and use the Service; (e) comply with all regulations, policies and procedures of networks through which You access and use the Service; and (f) not access or attempt to access any Service account for which You have no access authorization or duplicate, modify, distribute or display any of the data or files from any such account.(g) not use sharing features in a way that amounts to 'publishing' and restrict the use of sharing features to share data between friends, colleagues and business partners, in a very limited sense. Disk Hero may use automated procedures to detect unacceptable level of usage and may immediately disable offending accounts, and the process of detection may vary from time to time, based on misuse detected. Disk Hero is NOT a service for storing and disseminating large amounts of data to large number of recipients. It is an Online Storage and Backup service. Disk Hero is not responsible for any business interruptions that may be caused due to this process.

Any link(s) provided through a web site or a mass email to download/upload files stored at Disk Hero Accounts is completely unacceptable and would be considered as violation of terms as per the (g) clause mentioned above.

FAIR USAGE
A note on the concept of "personal PC storage" = fair usage
In addition, it is important to understand the definition of 'personal PC' Storage. No storage system can really be unlimited. The concept of 'personal PC' storage is to facilitate a low one-price plan to backup a PC's critical data that meets the requirement for majority of users for personal use and not to burden users with multiple plans. Any usage of storage and bandwidth that is several multiples of an average paid Disk Hero user may be considered as unfair use, this limit is currently fixed at a specific number based on the "average Disk Hero user amount of data stored" in number of GB's and subject to changes. Users exceeding the GB limitation set by Disk Hero may choose to pay extra fees requested by Disk Hero or in the case of non-action by the users on notification of excess usage, accounts may be cancelled and data removed.

A note on the concept of overuse over chosen/allocated quota
For usage beyond the opted plan for PC plans and business plans, there may be an overuse charge at the rate of USD $2.50/seat/device/month plus 0.50/GB/Month. Device = PCs, workstations, laptops, servers, U3 or USB thumb or external drives. Minimum monthly billing is $4.95/device.

DATA RETENTION POLICY:
Disk Hero will keep data for as long as your account gives us a "Heart Beat". Heart Beat is defined as a connection from your computer device to our servers indicating that the Disk Hero software is still running on your device. If your Disk Hero U3 account does not receive a heart beat for 90 days then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. If your Disk Hero PC or Server account does not receive a heart beat for 1 month (30 days) then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. These rules apply to all types of Disk Hero accounts.

3. Registration Information/Credit Card Charges or echecks data for direct bank account withdrawals

You will promptly notify Disk Hero of any change in the information You provide on Your registration form during Your registration for the Service (including, without limitation, any change in Your mailing address, telephone numbers or email address) done through your secure web portal/control panel. The registration information provided by You on Your registration form during Your registration for the Service, together with any and all updates provided by You from time to time under this paragraph, is referred to in this Agreement as the "Registration Information." Disk Hero policy regarding the privacy and use of the Registration Information is set forth in Disk Hero privacy policy, as the same may be modified and amended by Disk Hero from time to time (the "Privacy Policy"). When You accept this Agreement, You acknowledge that You agree to the terms of the Privacy Policy.

You authorize a recurring monthly or annual charge to your credit card in exchange for use of the Disk Hero service as indicated by published standard plans. You also agree that the enrollment for the next service period is automatic. Please note that refunds on a pro-rated basis are issued only for monthly plans. When yearly subscriptions are cancelled before the subscriptions end, refunds are issued based on a pro-rated calculation of the subscription charges at the monthly rate for the plan, for the actual number of days the account was subscribed (the number of days between the most recent yearly charges and the cancellation date). If the calculated refund amount exceeds the yearly subscription rate, then no refund is issued.

Disk Hero will not issue any pro-rated refunds for the remaining period during the month when an account with a monthly subscription plan ("current plan") is downgraded to a smaller plan ("new plan") (a plan that costs less per month than the current plan) during the middle of a month. However the rate applicable to the new plan will automatically be charged starting the first of the subsequent month.

Disk Hero may allow for use of storage space beyond the specified plan limit chosen by the user. Because Disk Hero only bills for amount of disk used in GB increments there is not need for increased use notification from Disk Hero. Disk Hero will notify the user when there amount of disk used increases by 20% in one given billing period.

4. Use of IP Addresses

An IP address is a number that's automatically assigned to your computer whenever you're surfing the Web. Disk Hero may collect IP addresses for the purposes of system administration, to audit the use of our site. We can and will use IP addresses to identify a user when we feel it is necessary to enforce compliance with our house rules or terms of service or to protect our service, site, customers, or others. Some services and Emails sent from Disk Hero, such as registration related, may display IP addresses along with the message.

5. Account and Password

After You accept this Agreement and Your registration has been accepted by Disk Hero, You will receive a link on your browser during registration, on activation of which Your Account will be established. You are solely responsible for any consequences arising out of Your failure to maintain the confidentiality of Your Password. You will notify Disk Hero of any unauthorized use or other breach in security of Your Account immediately after You learn of the same.

6. Security of Stored Data and Files

Disk Hero will endeavor to restrict access to the data and files You store or retrieve from Your Account to persons accessing such data and files through use of Your Account or Password.

7. 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 Disk Hero servers and (b) ensuring that such content does not include any of the items listed in paragraph 2(b) above. Disk Hero does not review, inspect, edit or monitor any content, data or files stored by You or any other user of the Service, including, without limitation, for viruses, worms, "Trojan horses" or any other similar contaminating or destructive features. However, if Disk Hero has suspicion that an account is being used for storage and distribution of any illegal material such as copy-righted content. Disk Hero reserves the right to refuse, remove or disable access to any data or files stored on Disk Hero servers with immediate effect that Disk Hero learns may be illegal, may violate the terms of paragraph 2 above, may violate the rights of any third party or otherwise may be reasonably objectionable.

Disk Hero will keep data for as long as your account gives us a "Heart Beat". Heart Beat is defined as a connection from your computer device to our servers indicating that the Disk Hero software is still running on your device. If your Disk Hero U3 account does not receive a heart beat for 90 days then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. If your Disk Hero PC or Server account does not receive a heart beat for 1 month (30 days) then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. These rules apply to all types of Disk Hero accounts.

8. Backups of your data

Disk Hero maintains internal daily backups of data to recover from any software/hardware failures. Multiple snapshots of your data at different times are maintained online.

Downtime and Service Suspensions. In addition to our rights to terminate or suspend Services to you as described in Section 12 below, you acknowledge that: (i) your access to and use of the Services may be suspended for the duration of any unanticipated or unscheduled downtime or unavailability of any portion or all of the Services for any reason, including as a result of power outages, system failures or other interruptions; and (ii) we shall also be entitled, without any liability to you, to suspend access to any portion or all of the Services at any time, on a Service-wide basis: (a) for scheduled downtime to permit us to conduct maintenance or make modifications to any Service; (b) in the event of a denial of service attack or other attack on the Service or other event that we determine, in our sole discretion, may create a risk to the applicable Service, to you or to any of our other customers if the Service were not suspended; or (c) in the event that we determine that any Service is prohibited by law or we otherwise determine that it is necessary or prudent to do so for legal or regulatory reasons (collectively, "Service Suspensions"). Without limitation to Section 9, we shall have no liability whatsoever for any damage, liabilities, losses (including any loss of data or profits) or any other consequences that you may incur as a result of any Service Suspension. To the extent we are able, we will endeavor to provide you email notice of any Service Suspension in accordance with the notice provisions set forth in Section 13 below and to post updates on the Disk Hero Websites regarding resumption of Services following any such suspension, but shall have no liability for the manner in which we may do so or if we fail to do so.

DATA RETENTION POLICY:
Disk Hero will keep data for as long as your account gives us a "Heart Beat". Heart Beat is defined as a connection from your computer device to our servers indicating that the Disk Hero software is still running on your device. If your Disk Hero U3 account does not receive a heart beat for 90 days then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. If your Disk Hero PC or Server account does not receive a heart beat for 1 month (30 days) then your account is put on hold. You will remain on hold for 30 days and if no action taken your data is deleted. These rules apply to all types of Disk Hero accounts.

9. 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, YOU’RE 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. DISK HERO, ON BEHALF OF ITSELF AND ITS DISTRIBUTORS, ADVERTISERS AND SUPPLIERS, DISCLAIMS ALL WARRANTIES AND CONDITIONS, 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 YOU’RE ACCOUNT AND THE SERVICE MAY NOT MEET YOUR NEEDS. DISK HERO MAKES 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.

The Disk Hero software is provided "as is" without warranty of any kind, either expressed or implied, including without limitation warranties of merchantability, fitness for a particular purpose, or non-infringement. Disk Hero makes reasonable efforts to produce useful software as well as accurate and up-to-date documentation regarding the use of such software, Disk Hero does not, however, make any warranties or representations as to its usability, accuracy or completeness. Under no circumstances and under no legal theory shall Disk Hero, or any other party involved in distributing Disk Hero's software and services be liable to you or any other person for consequential damages resulting from your use of this software, services and its documentation.

RISK OF USE
You understand that the software may have errors and may produce unexpected results. You agree that any use of the software and service will be entirely at your own risk

10. Limitations of Liability

IN NO EVENT SHALL DISK HERO OR ITS ADVERTISERS OR SUPPLIERS HAVE ANY OBLIGATION OR LIABILITY TO YOU FOR THE COST OF PROCUREMENT OF SUBSTITUTE SERVICES OR DATA OR FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR CONSEQUENTIAL DAMAGES (INCLUDING, WITHOUT LIMITATION, ANY LOSS OF DATA, REVENUE OR PROFITS OR BUSINESS INTERRUPTION) OR OTHER PECUNIARY LOSS ARISING OUT OF YOUR USE OR INABILITY TO USE YOUR ACCOUNT OR THE SERVICE OR YOUR LOSS OF DATA OR FILES STORED THEREIN.

NEITHER DISK HERONOR ANY OF OUR LICENSORS SHALL BE LIABLE TO YOU FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, CONSEQUENTIAL OR EXEMPLARY DAMAGES, INCLUDING, BUT NOT LIMITED TO, DAMAGES FOR LOSS OF PROFITS, GOODWILL, USE, DATA OR OTHER LOSSES (EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES) IN CONNECTION WITH THIS AGREEMENT, INCLUDING, WITHOUT LIMITATION, ANY SUCH DAMAGES RESULTING FROM: (i) THE USE OR THE INABILITY TO USE THE SERVICES; (ii) THE COST OF PROCUREMENT OF SUBSTITUTE GOODS AND SERVICES; OR (iii) UNAUTHORIZED ACCESS TO OR ALTERATION OF YOUR CONTENT. IN ANY CASE, OUR AGGREGATE LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO THE AMOUNT ACTUALLY PAID BY YOU TO US HEREUNDER FOR THE SERVICES. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF CERTAIN WARRANTIES OR THE LIMITATION OR EXCLUSION OF LIABILITY FOR INCIDENTAL OR CONSEQUENTIAL DAMAGES. ACCORDINGLY, SOME OR ALL OF THE ABOVE EXCLUSIONS OR LIMITATIONS MAY NOT APPLY TO YOU, AND YOU MAY HAVE ADDITIONAL RIGHTS.

11. Indemnification

You will defend, indemnify and hold Disk Hero, its parents, subsidiaries, affiliates, agents, officers, directors and employees, harmless from any claim or demand, 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 and otherwise on the Disk Hero servers and (c) any violation of this Agreement by You.

12. Termination

Either you or Disk Hero may terminate this Agreement with or without cause at any time by giving notice of such termination to the other in the manner described in paragraph 13 below. Further, if Disk Hero believes that You have violated Your obligations under this Agreement, Disk Hero may, at its option and in addition to its other remedies, immediately and without notice, suspend Your Account, remove and destroy data and files stored by You on Disk Hero servers and/or terminate this Agreement. Disk Hero will not be liable to You or any third party for any suspension or termination of Your Account or the Service. Should You object to any terms and conditions of this Agreement or any subsequent modifications thereto or become dissatisfied with the Service in any way, Your only recourse is too immediately: (a) discontinue use of the Service; (b) terminate this Agreement; and (c) notify Disk Hero of such termination. Upon any termination of this Agreement, You will cease use of the Service and, within five (5) days after the effective date of such termination, remove all of Your stored data files from the Disk Hero servers. Disk Hero may destroy any of Your stored data files that are not removed from Disk Hero servers within such five (5)-day period. All paragraphs of this Agreement (and any other provision that can be reasonably construed to survive termination) will survive termination of this Agreement.

13. Notices

Any notice under this Agreement given by Disk Hero to You will be deemed to be properly given if sent by email to Your email address as set forth in the Registration Information, or by a startup screen that starts before Your next use of the Service or by written communication mailed by first class U.S. mail to Your address on record in the Registration Information or by a display about the changed information in the agreement on the index page if the change is generic. It is important that you maintain a correct working email id and update it if necessary to be able to receive Disk Hero communication. Any notice under this Agreement given by You to Disk Hero will be deemed to be properly given if received by email sent to Disk Hero Customer Service at support@diskhero.com

14. Severability

This Agreement will be enforced to the fullest extent permitted by applicable law. If for any reason any provision of this Agreement is held to be invalid or unenforceable under applicable law to any extent, then (a) such provision will be interpreted, construed or reformed to the extent reasonably required to render the same valid, enforceable and consistent with the original intent underlying such provision and (b) such invalidity or ineffaceability will not affect any other provision of this Agreement.

15. Modifications to this agreement

The terms and conditions of this Agreement may be changed by Disk Hero from time to time. Upon any such change, Disk Hero will notify you of such change in accordance with paragraph 13 above and post an updated version of this Agreement on the Disk Hero web site located at http://www.diskhero.com. Your use of any Services after such notification will constitute Your acceptance of such changed terms and conditions.

16. Miscellaneous

Your right to use the Service is personal to You, and You will not assign any of Your rights, obligations or interest in this Agreement or Your Account. Without limiting the foregoing, this Agreement is binding upon and inures to the benefit of the parties and their respective successors and assigns. WebProfit, Inc. dba "Disk Hero" failure to insist upon or enforce strict performance of any provision or right of this Agreement will not be construed as a waiver of any provision or right. This Agreement will be governed by the laws of the State of California, without regard to its conflict of laws rules. The provisions of the U.N. Convention on Contracts for the International Sale of Goods and any successor treaties will not apply. You consent to the venue and exclusive jurisdiction of the state and federal courts located in Sacramento, California, U.S.A., with regard to any claim arising under or otherwise occurring by reason of this Agreement or Your use of the Service or Your Account. You will commence any claim or cause of action arising under or otherwise occurring by reason of this Agreement within one (1) year after the claim or cause of action arises or such claim or cause of action is forever barred. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes any and all prior and contemporaneous understandings and agreements.

U.S. GOVERNMENT RESTRICTED RIGHTS
If this license is acquired under a U.S. Government contract, use, duplication or disclosure by the U.S. Government is subject to restrictions as set forth in DFARS 252.227-7013(c)(1)(ii) for Department of Defense contracts and as set forth in FAR52.227-19(a)-(d) for civilian agency contracts.  Disk Hero reserves all unpublished rights under the United States Copyright laws. 

OTHER
The internal laws of the state of California control this Agreement if you are located in the United States or in any country other than Canada; the laws of the Province of Ontario shall control if you are located in Canada.  This Agreement is the complete agreement between you and Disk Hero concerning the software and service.