Accepting the Terms

1. By registering, logging in to, or otherwise using the information, tools, features and functionality provided by Cloud Preservation (hereinafter the “Service”), you (the user), whether you are a “Guest” (which means that you simply browse the Cloud Preservation website) or you are a “Member” (which means that you have registered with Cloud Preservation either as a Retail Customer or as a Preferred Customer), agree to be bound by the terms and conditions described here (the “Agreement”) and Nextpoint’s Privacy and Security Policy http://www.nextpoint.com/privacy.html, as they may be amended from time to time in the future.

2. You may not use the Service and you may not accept this Agreement if you are not of a legal age to form a binding contract with Nextpoint.

3. If you accept this Agreement, you represent that you have the capacity to be bound by it or if you are acting on behalf of a company or entity that you have the authority to bind such entity.

Authorized Agent

4. By submitting website urls, information, data, passwords, usernames, PINs, other log-in information, materials and other content to Nextpoint through the Service, you are licensing that content to Nextpoint solely for the purpose of providing the Service. Nextpoint may use and store the content, but only to provide the Service to you.

5. By submitting website urls, information, data, passwords, usernames, PINs, log-in information, materials and other content to Nextpoint through the Service, you represent and warrant that you are entitled to submit this Content to Nextpoint for this particular purpose, without any obligation by Nextpoint to obtain licensing, pay fees or overcome other limitations.

6. By using the Service, you expressly authorize Nextpoint to access the websites and user accounts maintained by the identified third parties, on your behalf as your agent. When you use the “Add New Site” feature of the Service, you will be directly connected to the website for the third party you have identified. If the Site requires a login, Nextpoint will submit information including usernames and passwords that you provide to log you into the Site. You hereby authorize and permit Nextpoint to use and store information submitted by you to the Service (such as account passwords and user names) to accomplish the foregoing and to configure the Service so that it is compatible with the third party sites for which you submit your information. For purposes of this Agreement and solely to provide the Service, you grant Nextpoint a limited power of attorney, and appoint Nextpoint as your attorney-in-fact and agent, to access third party sites, retrieve and use your information with the full power and authority to do and perform each thing necessary in connection with such activities as you could do in person. YOU ACKNOWLEDGE AND AGREE THAT WHEN NEXTPOINT IS ACCESSING AND RETRIEVING WEBSITE INFORMATION FROM THIRD PARTY SITES, NEXTPOINT IS ACTING AS YOUR AGENT, AND NOT AS THE AGENT OF OR ON BEHALF OF THE THIRD PARTY. You understand and agree that the Service is not sponsored or endorsed by any third parties accessible through the Service.

License to use Nextpoint Cloud Preservation

7. Subject to all of these terms hereof, Nextpoint grants you a revocable non-exclusive, non-transferable license to use the Service, the Site or any other domain name at which Cloud Preservation, is accessible – but only so long as you are current on all of the fees and expenses due under this Agreement.

8. Under no circumstances may you copy, create Derivative Works, sub-license, grant access to, display, transmit, exhibit or transfer Cloud Preservation to anyone else without our prior written consent. What are Derivative Works? See Title 17 of the United States Code, Section 101.

9. Upon termination of this Agreement, all license rights you have been granted will automatically expire.

10. Be advised that the conduct of anyone who accesses the Site through your accounts is your responsibility. Any requirements or standards of conduct stated in this Agreement for you apply equally to any users you authorize to access the service.

11. Other than during the thirty (30) day free trial, under no circumstances are you permitted to access Cloud Preservation or the Service for purposes of monitoring its availability, performance or functionality, or for any benchmarking or competitive purposes, except with Nextpoint’s prior written permission.

What Nextpoint will do for you

12. Nextpoint will host, maintain and provide Cloud Preservation applications for manipulation of the data you obtain through the Service as well as data that you upload for use within Cloud Preservation.

13. Nextpoint will provide Help Desk Services. “Help Desk Services” means providing you with consultation services by telephone or e-mail to allow you to report problems, bugs and defects and to ask questions concerning specific features and functionalities of Cloud Preservation. We will use reasonable efforts to address issues and questions in a time frame commensurate with their urgency and severity.

What it costs; when and how you pay

14. In exchange for use and access to Cloud Preservation, you agree to pay the monthly fees assessed by Nextpoint upon sign up in association with the pricing plan you selected. Nextpoint reserves the right to adjust these prices after providing you with notification at last thirty (30) days prior to the implementation of the new rate.

15. Unless otherwise agreed, all charges incurred by you pursuant to this Agreement will be debited electronically via ACH debit from the bank account that you have specified or by credit card charge to the MasterCard, Visa or American Express card. Nextpoint will automatically charge you the Service Fee monthly in arrears.

16. You explicitly authorize these charges, and agree that you may dispute charges only with Nextpoint directly and not through any bank or merchant processor dispute or chargeback process. In the event that we are unable to process charges via the ACH debit or Credit Card information you have provided, we will invoice you on “due on receipt” terms, and you agree to pay by bank draft or wire transfer of immediately available funds. Nextpoint may at its option suspend or terminate all services hereunder upon seven days’ written notice if you fail to keep a valid bank account or Credit Card on file.

17. Invoices or statements will be provided electronically upon request.

18. The fees set forth herein are exclusive of all taxes. You are responsible for payment of all taxes of every kind imposed in connection with the sale or license of products or services under this Agreement.

Your obligations

19. You agree and understand that you are solely responsible for all content and materials that you supply to Nextpoint and for all acts or omissions that occur relating to your use of Cloud Preservation and the Hosting Services. You agree to use the Service only for purposes that are legal, proper and in accordance with the terms of this Agreement. Nextpoint reserves the right to immediately cease or terminate archival service with no advance notice in the event it is informed or determines that us of its software is violating applicable laws.

20. You agree and hereby represent to Nextpoint that you will only use the Service to access and/or archive content and material from websites that you own, are licensed to access, capture, and archive, or that are publicly available and not subject to restrictions on crawling by third-parties. You further agree that you will indemnify Nextpoint, in accordance with Paragraph 38 for any claims against Nextpoint arising from any use of the Service to access websites or archive content and material in excess of your rights, or due to your breach of this Agreement.

21. You hereby grant Nextpoint a perpetual, worldwide, non-exclusive, royalty free license to use, reproduce, adapt, modify, translate, publish, publicly perform, publicly display, prepare derivative works of and distribute all or any portion of the content which you submit, share, upload, archive, index or display on or through the Service for the sole purpose of enabling Nextpoint to provide you with the Service in accordance with the Nextpoint Privacy Policy.

22. You understand that Nextpoint, in performing the required technical steps to provide the Service to you, may (a) transmit or distribute your Content over various public networks and in various media; and (b) make such changes to your Content as are necessary to conform and adapt that Content to the technical requirements of connecting networks, devices, service or media. You agree that this license shall permit Nextpoint to take these actions.

23. You are responsible for ensuring that you own or have obtained all necessary rights in the content and materials. You confirm and warrant to Nextpoint that you have all the rights, power and authority necessary to grant the above license. You certify that your use of the Service and the Content collected by the Service will be limited to noninfringing or fair use under copyright law and you will otherwise not submit, share, upload, archive, index, or display Content on or through the Service that is copyrighted, protected by trade secret or subject to third party proprietary rights, including privacy and publicity rights.

24. In connection with the provision of Cloud Preservation, you will have access to the Site. In the process of accessing the Site and using Cloud Preservation, you are responsible for complying with all applicable laws and regulations in all relevant jurisdictions. Specifically, among other things, you agree that by, while, or through accessing or using the Site, you will not do these or any other bad things: (i) act in any way that might give rise to civil or criminal liability, (ii) use or attempt to use another person’s password, (iii) infringe any copyright, trademark, patent or other proprietary rights of a third party, (iv) capture or transmit any unlawful, obscene, or pornographic material; (v) act in any way that might be harmful to minors, including, without limitation, transmitting or facilitating the transmission of child pornography, which is prohibited by federal law and may be reported to the authorities should it be discovered by Nextpoint, (vi) restrict or inhibit any other user from using or enjoying the Site; (vii) disrupt or interfere with the Site or its operation or availability, or alter or tamper with the content of the Site; (viii) engage in spamming, flooding, or any denial of service attack; or (ix) post or transmit any information or software which contains a virus, trojan horse, worm, or other disabling device or harmful component. Nextpoint reserves the right and has the reasonable discretion to restrict or remove from its servers, or suspend the hosting of, any content that violates this Agreement.

Copyright and Account Termination Policy

25. Nextpoint does not permit infringement of intellectual property rights on the Service. Nextpoint may, in appropriate circumstances and at its discretion, remove certain content or disable access to content that appears to infringe the copyright or other intellectual property rights of others. Without prior notice and at any time at its sole discretion, Nextpoint reserves the right to remove any Content, disable your ability to archive or index Content within the Service, or terminate your access to the Service (a) for archiving or sharing such Content in violation of the Agreement; or (B) if, under appropriate circumstances you are determined to be a repeat infringer.

26. It is Nextpoint’s policy to respond to clear notices of alleged copyright infringement. Please provide the following information in a signed writing to Nexpoint at info@nextpoint.com each time you wish to report alleged acts of infringement:

a. A detailed description of the copyrighted work that you believe has been infringed upon

b. The location of the infringing material

c. A description of the infringing material

d. Your Contact Information, including an email address, phone number and street address

e. The following statement “I have a good faith belief that the use of the copyrighted materials identified above is not authorized by the copyright owner, its agent, or the law.”

f. The following statement: “I, the undersigned, swear, under penalty of perjury, that the information in the notification is accurate and that I am the copyright owner or am authorized to act on behalf of the owner of an exclusive right that is allegedly infringed.”

g. Your electronic or physical signature.

Nextpoint’s response to these notices may include removing or disabling access to material claimed to be the subject of infringing activity and/or terminating users. If we remove or disable access in response to such a notice, we will make a good-faith attempt to contact the owner or administrator of the affected site or content so that they may make a counter notification.

27. Nextpoint reserves the right in its sole discretion to decide whether your conduct is inappropriate and whether it complies with the Agreement for violations other than copyright infringement, such as, but not limited to pornography, obscene or defamatory material, or excessive length. Nextpoint may terminate your access for such in violation of this Agreement at any time and remove any such objectionable Content, without prior notice and at its sole discretion.

Ownership

28. You retain copyright and any other rights you already hold in Content which you archive, store, submit, share, or display on or through the Service.

29. You acknowledge and agree that Cloud Preservation, and all related intellectual property rights, are and shall remain the exclusive property of Nextpoint. Except for the license granted to you above, you shall not receive any other rights in or to Cloud Preservation. You further agree that you shall not sell, assign, convey, sub-license, share with, or otherwise provide any third party with access to Cloud Preservation, or any portion thereof, or any product or service or Derivative Work that contains, embodies, or is derived from Cloud Preservation, without the express written consent of Nextpoint. Nextpoint shall have the right, at its sole expense, to register or otherwise protect its Intellectual Property Rights in Cloud Preservation in whatever manner it deems appropriate, including, without limitation, the filing of patent and copyright applications anywhere in the world.

30. You acknowledge and agree that all right, title and interest in and to the Site, as well as all related look-and-feel content displayed on the Site, shall remain the sole and exclusive property of Nextpoint. You may not duplicate, copy, or reuse any portion of the HTML/CSS, Javascript, or visual design elements or concepts of Cloud Preservation or the Site without express written permission from Nextpoint.

Confidentiality

31. Nextpoint will not disclose your Confidential Information to any third party, and complies with industry best practices to protect your Confidential Information. Confidential Information shall include, without limitation, any business proprietary information stored within Cloud Preservation or any other information furnished by you that is obviously confidential or that you designate as confidential not including any material that is publicly available on the Internet or elsewhere. Nextpoint may, however, disclose any Confidential Information or other material that is required to be disclosed by law or judicial order, provided that prior written notice of such required disclosure is furnished to you as soon as practicable in order to afford you an opportunity to seek a protective order or confidential treatment. Nextpoint will cooperate in these efforts, although any expenses for these endeavors will be borne by you. If such order or treatment cannot be obtained, then Nextpoint shall be permitted to disclose by you without liability.

32. You agree not disclose to any third party information about the Cloud Preservation program and program features.

Warranties

33. Nextpoint hereby represents and warrants to you that (i) it has the right to grant the licenses herein, and (ii) excluding downtime for regularly scheduled maintenance, of which you will be notified in advance and which will be conducted using commercially reasonable efforts to minimize or eliminate any effect on you, that Cloud Preservation and the Hosting Services will be available 99.0% of each month.

Disclaimer

34. You acknowledge that Nextpoint does not represent, warrant or endorse any Third Party Sites, or the information, materials, products, features or services contained on or accessible through Third Party Sites available through the Cloud Preservation Service. In addition, your correspondence or business dealings with any Third Party Sites are solely between you and that provider, and subject to that provider’s separate terms and conditions. Furthermore, your access to and use of the Third Party Sites and Content is at your sole discretion and risk, and Nextpoint shall have no liability to you arising out of or in connection with your access to and use of the Third Party Sites and Content. Nextpoint hereby disclaims any representation, warranty or guaranty regarding the Third Party Content and Services, whether express, implied or statutory, including, without limitation, the implied warranties of merchantability or fitness for a particular purpose, and any representation, warranty or guaranty regarding the availability, quality, reliability, features, appropriates, accuracy, completeness, or legality of the Third Party Sites or Content.

35. You acknowledge and agree that the provision of access to and the listing of any Third Party Content (including any third party websites available through the Service) shall not constitute or imply any endorsement by Nextpoint of such Third Party Content. Nextpoint reserves the right to restrict or deny access to any Third Party Content otherwise accessible through the Cloud Perservation Service, although Nextpoint has no obligation to restrict or deny access even if requested by you.

36. You understand that by accessing and using the Service, you may encounter information, materials and subject matter (i) that you or others may deem offensive, indecent, or objectionable; (ii) which may or may not be identified as having explicit language and (iii) that automatically and unintentionally may be displayed on the Service. Notwithstanding the foregoing, you agree to use the Third Party Content at your sole risk and that Nextpoint shall have no liability to you for information, material or subject matter that is found to be offensive, indecent or objectionable.

37. YOU ACKNOWLEDGE AND AGREE THAT THE CLOUD PRESERVATION SERVICE IS PROVIDED ON AN “AS IS” BASIS, AND THAT YOUR USE AND RELIANCE UPON THE CLOUD PRESERVATION SERVICE AND ANY THIRD PARTY CONTENT AND SERVICES ACCESSED THEREBY IS AT YOUR SOLE RISK AND DISCRETION. NEXTPOINT HEREBY DISCLAIMS ANY AND ALL REPRESENTAITONS, WARRANTIES AND GUARANTIES REGARDING THE CLOUD PRESERVATION SERVICE AND ANY THIRD PARTY CONTENT, WHETHER EXPRESS, IMPLIED OR STATUTORY, AND INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT. FURTHERMORE, NEXTPOINT MAKES NO WARRANTY THAT (I) THE CLOUD PRESERVATION SERVICE WILL MEET YOUR REQUIREMENTS; (II) THE CLOUD PRESERVATION SERVICES WILL BE UNINTERRUPTED, ACCURATE, RELIABLE, TIMELY SECURE OR ERROR FREE; (III) THE QUALITY OF ANY PRODUCTS, SERVICES, INFORMATION OR OTHER MATERIAL ACCESSED OR OBTAINED BY YOU THROUGH THE CLOUD PRESERVATION SERVICE; (IV) ANY ERRORS IN THE CLOUD PRESERVATION SERVICE OR THIRD PARTY CONTENT WILL BE CORRECTED. NO ADVICE FROM NEXTPOINT OR INFORMATION, WHETHER ORAL OR WRITTEN, OBTAINED BY YOU FROM NEXTPOINT SHALL CREATE ANY REPRESENTATION, WARRANTY OR GUARANTY.

Indemnification; limitations of liability

38. You shall indemnify, defend and hold harmless Nextpoint from and against any claim, proceeding, loss, damage, fine, penalty, interest and expense (including, without limitation, reasonable fees for attorneys and other professional advisors) arising out of or in connection with the following (i) your breach of this Agreement; (ii) your violation of law; (iii) your negligence or willful misconduct; (iv) your violation of the rights of a third party, including violation of the Terms of Use of Third Party Sites or the infringement by you of any intellectual property or misappropriation of any proprietary right or trade secret of any person or entity. These obligations will survive any termination of the License..

39. In no event shall any party be liable to the other party or to any third party for any incidental, indirect, special, exemplary or consequential damages arising from or in connection with the inability to use the Cloud Preservation Service or the Hosting Services, or any content obtained through or maintained by the Service or your transfer of data, (including, but not limited to, damages or costs incurred as a result of lost profits, loss of data or information, interruption of business, cost of replacement goods or software, loss of goodwill, or other financial loss). Nextpoint shall not be liable under any circumstance for any claim that exceeds the value of the funds you have paid to Nextpoint under this Agreement.

Term and Termination

40. The Term of this Agreement commences upon the earlier of your first use of Cloud Preservation or the provision by Nextpoint of any services hereunder. You may terminate the Agreement at any time upon notice to Nextpoint. Nextpoint may terminate the Agreement upon 30 days’ notice to you, upon 7 days’ notice for a material, uncured breach, or as otherwise set forth in this Agreement.

41. All provisions relating to payment of fees, ownership, confidentiality, as well as any definitions, shall survive termination of the Agreement for an indefinite period.

42. Upon termination and at your request, Nextpoint will convert your Cloud Preservation data into an industry-standard, delimited export format and deliver the data to you.

Final Clauses

43. The parties have read this Agreement and agree to be bound by its terms. This Agreement constitutes the entire Agreement, and supersedes all previous communications or commitments. Any changes to these terms must be in writing and acknowledged by authorized representatives of both parties. If this Agreement is incorporated into a separate services agreement between you and Nextpoint, and in the event of any conflict or inconsistency between this Agreement and the other agreement, this Agreement shall be controlling as to matters relating to the Cloud Preservation service and your use thereof.

44. Any notices shall be in writing and addressed to the representatives of the parties set forth above, either by reputable overnight courier or by electronic mail with confirmation of delivery. The provisions of this Agreement are severable; the unenforceability of any provision of this Agreement shall not affect the enforceability of any other. A waiver by either party of any term or condition of this Agreement or any breach thereof, in any one instance, shall not waive such term or condition or any subsequent breach thereof. This Agreement is not transferable or assignable to any other party by either party, except to an acquirer of all or substantially all of Cloud Preservation business.

45. Nothing contained in this Agreement is intended or shall be construed to confer upon any person (other than the parties hereto) any rights, benefits or remedies of any kind or character, or to create any obligations or liabilities of a party to any such person.

46. The Cloud Preservation service is offered and available for use by any and all Members, which may include your competitors and/or parties to whom you are or may become adverse to in litigation.

47. This Agreement shall be governed by and construed in accordance with the laws of the State of Illinois applicable to agreements made and performed in Illinois, excluding the application of its conflict of laws provisions. The parties agree that any action or suit brought by a party to enforce or adjudicate the rights of the parties under this Agreement shall be brought in the federal or state courts located in Chicago, Illinois.