DIS Vault Account Setup

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DIS Vault End User License Agreement

DATA IMAGING SYSTEMS, INC.

LICENSE AND USER AGREEMENT

NOTICE TO ALL USERS: BEFORE YOU CLICK ON THE "I ACCEPT" BUTTON BELOW, CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT ("AGREEMENT") WHICH SETS FORTH THE TERMS AND CONDITIONS UNDER WHICH YOU (THE "USER") MAY ACCESS AND USE DATA IMAGING SYSTEMS, INC'S ("DIS") PROPRIETARY DIS Vault SOFTWARE (THE "SOFTWARE"), RELATED INFORMATION, MATERIALS AND DOCUMENTATION (THE "DOCUMENTATION"), AND ONLINE DATA BACKUP SERVICES (THE "SERVICES"). BY CLICKING THE "I ACCEPT" BUTTON BELOW, USER SIGNIFIES THAT USERHAS READ, UNDERSTANDS, AND AGREES TO THE TERMS OF THIS AGREEMENT. IF YOU DO NOT AGREE WITH THE TERMS AND CONDITIONS OF THE AGREEMENT, CLICK THE "I DO NOT ACCEPT" BUTTON AND DO NOT USE THE SOFTWARE.

DUE TO THE NATURE OF BACKUP SERVICE, IT IS RECOMMENDED THAT YOU PERFORM OCCASIONAL TEST RESTORES.

In consideration of the mutual promises set forth herein, DIS and User hereby agree as follows:

1. LICENSE. 1.1. License to Use Software. Solely to the extent necessary to access and utilize the Services in accordance with this Agreement, DIS grants User a personal, non-exclusive, non-transferable license, without right of sub-license, to access and use the Software and Documentation (the "License").

1.2. Restrictions on Use. User shall not, directly or indirectly: (i) create or enable the creation of derivative works, modifications, or adaptations of the Software or Documentation; (ii) decompile, reverse engineer or disassemble the Software; (iii) distribute or disclose the Software or Documentation to third parties; (iv) remove or modify any copyright, trademark, patent or other proprietary marking or restrictive legends placed on the Software or Documentation; (v) use any automatic device or program or manual process to monitor, copy or reproduce the Software or Documentation; (vi) modify the Software or Documentation or interfere with the proper operation of the Software or the use of the Software by third parties; or (vii) use the Software in violation of any applicable local, state, national or international law or regulation.

2. SERVICES. DIS shall establish an online storage and backup account in the name of User (the "User Account") to receive, via the Internet, and store User files (the "User Files"). Pursuant to DIS' instructions, User shall choose an Encryption Key and Password for use in connection with the Services and for access to User Files. The Software shall be designed to permit access to User Files only with a valid Encryption Key and Password. DIS shall have the right to block or suspend User's access to the Software, or the Services as DIS may, in its reasonable discretion, deem necessary to preserve the security and integrity of the Software and the Services, including, without limitation, upon any of the following circumstances: (i) full or partial failure of the Software or the Services, (ii) a breach in the security of the Software or the Services, or (iii) a breach by User of any of User's obligations under this Agreement.

3. USER RESPONSIBILITIES. User shall maintain a minimum computer system for accessing the Services which meets at least the following specifications, which DIS reserves the right to modify as may be required to accommodate future changes to the Services: any computer running Microsoft Windows 98 or later with an Internet connection of 56Kbps or greater. User shall be responsible for preventing the misuse or misappropriation of any Encryption Key and Password and shall maintain the confidentiality and security of any Encryption Key and Password. In the event of any misuse or misappropriation of any Encryption Key or Password, User will be solely responsible therefore. USER ACKNOWLEDGES THAT WITHOUT THE CORRECT ENCRYPTION KEY, USER FILES WILL REMAIN ENCRYPTED AND INACCESSIBLE. DIS SHALL HAVE NO LIABILITY FOR ANY DAMAGES SUFFERED DUE TO MISUSE, MISAPPROPRIATION, LOSS OR THEFT OF USER'S ENCRYPTION KEY AND PASSWORD. User shall bear all risk of loss of User Files while in transit to or from DIS Vault servers. DIS shall not be responsible for any loss, theft, corruption or modification of User Files transmitted, stored, retrieved, viewed, used or otherwise provided in connection with the Software or the Services.

4. FEES, TAXES AND PAYMENT.

4.1. Fees. In exchange for the License and the Services provided by DIS under this Agreement, User shall pay DIS in advance a monthly fee based on the service plan User has selected. If DIS does not receive written notice of a request for service termination by User, User acknowledges and understands that DIS will continue to charge User for the Services as long as User's account remains active regardless if the Services are used or not.

4.2. Over Usage Charges. User acknowledges that at the end of each billing period, if User is using more than the allotted amount of storage based on the service plan User has selected, then DIS shall charge for User's over usage of the Services. User's additional monthly charge shall be calculated based on the difference of the actual gigabytes of storage and the gigabytes of contracted storage for the User's storage plan multiplied by the price per gigabyte for the User's current service plan. User has the option to select a higher capacity service plan for subsequent billing periods.

4.3. Taxes. User is responsible for all sales, use and other taxes that are levied or imposed by reason of the License, User's use of the Software or the Services, this Agreement, or the transactions contemplated herein.

4.4. Payment by Credit Card. All credit card transactions will be charged a 4% credit card processing fee. For Users who choose to pay for the Services by credit card, Users credit cards shall be debited automatically on the first day of each monthly billing cycle and they shall receive a receipt via electronic mail. User shall maintain a current authorization for DIS to debit User's credit card account for such amounts. In addition, User shall provide DIS with a current street address, billing address, phone number and email address for all communications and shall notify DIS of any change of address. For situations where the User's credit card issuing financial institution has been notified of a payment dispute, User agrees that proof of Service usage by User constitutes User's authorization to submit payment request to Credit Card issuing financial institution.

4.5. Payment by Check. For Users who choose to pay for the services via check, Users shall receive an invoice via mail or email approximately fifteen (15) days before the beginning of each monthly billing cycle, dated on the first day of the billing cycle. All payments shall be due fifteen (15) days from the date of the invoice. After fifteen days, all amounts due but unpaid shall accrue interest at the lesser of the rate of one and one-half percent (1-1/2%) per month or the maximum rate allowed by applicable law.

5. OWNERSHIP RIGHTS. 5.1. Software, Documentation and Services Property of DIS. The Software, Documentation and the Services are the exclusive property of DIS, or the third parties from whom DIS has secured the right to use materials contained in the Software, Documentation and the Services. DIS and such third parties shall retain all right and title, to the extent of their respective interests, to all proprietary rights in the Software, Documentation and the Services, and to any other intellectual property owned or otherwise provided by DIS. User shall have no right to use the Software, Documentation or the Services for any purpose other than as set forth in this Agreement. User shall not challenge, or assist any other person or entity in challenging DIS's right, title, and/or interest in the Software, Documentation and the Services.

5.2. User Files Property of User. All User Files are and shall remain the exclusive property of User. User shall retain all right and title in and to the User Files, including any proprietary rights in the User Files. DIS shall not transfer, sell, disclose, license, alter or otherwise use the User Files other than to provide the Services as contemplated by this Agreement. DIS shall have the right to make copies of User Files stored in connection with the Services, however, DIS is not obligated to archive such copies and will utilize them only for backup purposes.

6. TERM AND TERMINATION

6.1. Term. The term of the Agreement (the "Term") shall commence on the date that User accepts this Agreement by clicking the "I ACCEPT" box below this Agreement, and shall continue in full force and effect in perpetuity until terminated.

6.2. Termination by User. User may terminate this Agreement at any time by providing DIS with written notice of User's intent to terminate use of the Service. At the time termination, the User's access to User Account and any of User Files stored by the Service may be permanently terminated. DIS shall not provide a refund for any unused portion of the Services paid in advance by User.

6.3. Termination by DIS for Breach. DIS may, by written notice to User, terminate this Agreement, including all licenses granted hereunder, in the event of a default by User. Each of the following shall constitute a default: (i) Failure by User to pay DIS in full for any fee(s) and/or charge(s) due to DIS if payment is not rendered within fifteen (15) days after the payment was due; (ii) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after written receipt of notice; (iii) any material breach of license grants, license restrictions, intellectual property rights, or confidentiality provisions provided herein effective immediately upon receipt of notice from DIS; or (iv) User becomes the subject of any bankruptcy, insolvency, or reorganization proceeding, or generally seeks relief from its debts, or becomes or is declared, by any court of competent jurisdiction, to be insolvent.

6.4. Termination by DIS without Cause. DIS may terminate this Agreement, including all licenses granted hereunder, without cause upon thirty (30) days written notice. Should DIS opt to terminate the Agreement without cause, DIS agrees to allow User access to User Account and User Files for not less than 30 days following notification of termination. DIS also agrees to provide a prorated refund for any unused portion of the Services paid in advance by User.

6.5. DISPOSITION OF DATA ON TERMINATION. USER UNDERSTANDS THAT ALL USER FILES STORED BY DIS UNDER THIS AGREEMENT SHALL BE DELETED ON OR AFTER SEVEN (7) DAYS FROM THE TERMINATION DATE OF THIS AGREEMENT (THE "TERMINATION PERIOD"). USER ACKNOWLEDGES THAT AFTER THE TERMINATION PERIOD, USER FILES WILL NO LONGER BE ACCESSIBLE TO USER.

6.6. Payment of Fees and Other Matters upon Termination. Upon the termination of this Agreement for any reason, User shall pay to DIS any and all outstanding fees, charges and other amounts relating to the Software and the Services or otherwise which are due DIS. All rights granted by DIS under this Agreement shall cease upon the expiration or termination of this Agreement for any reason, and User shall immediately cease any use of the Software and/or the Services upon such termination.

7. LIMITATION OF LIABILITY. IN NO EVENT WILL ANY PERSON OR ENTITY CONTROLLING,CONTROLLED BY, OR UNDER COMMON CONTROL WITH DIS, OR THEIR RESPECTIVE OFFICERS, DIRECTORS, EMPLOYEES, MEMBERS, MANAGERS, ATTORNEYS, OR AGENTS (AN "DIS ENTITY")BE LIABLE FOR ANY SPECIAL, INDIRECT, INCIDENTAL, PUNITIVE, EXEMPLARY OR CONSEQUENTIAL DAMAGES (including, but Not limited to, lost profits, lost data OR INFORMATION, loss of use of the SOFTWARE OR THE SERVICES, business interruption, loss of business reputation or goodwill, costs of substitute services, or downtime costs) WHICH USER OR OTHERS MAY INCUR OR EXPERIENCE DIRECTLY OR INDIRECTLY ARISING OUT OF OR RELATING TO THE SOFTWARE, THE SERVICES, THIS AGREEMENT, OR THE EXPIRATION OR TERMINATION OF THIS AGREEMENT, EVEN IF DIS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES AND NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE. NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT, THE AGGREGATE LIABILITY OF ALL DIS ENTITIES, ON A COMBINED BASIS, FOR DAMAGES FOR ANY CAUSE WHATSOEVER DIRECTLY OR INDIRECTLY RELATING TO OR ARISING OUT OF THIS AGREEMENT OR THE SOFTWARE OR THE SERVICES, AND REGARDLESS OF THE FORM OF ACTION, SHALL BE LIMITED TO THE AMOUNT PAID BY USER TO DIS IN THE SIX (6) FULL CALENDAR MONTHS PRIOR TO THE EVENT GIVING RISE TO SUCH DAMAGES. SOME STATES DO NOT ALLOW THE EXCLUSION OF INCIDENTAL OR CONSEQUENTIAL DAMAGES SO THIS LIMITATION MAY NOT APPLY TO YOU. THE FOREGOING PROVISIONS SHALL BE ENFORCEABLE TO THE MAXIMUM EXTENT PERMITTED BY LAW.

8. INDEMNIFICATION. User shall defend, hold harmless, and indemnify DIS, and any party claiming by or through DIS (the "DIS Indemnified Parties") from and against any claim, suit or proceeding brought by a third party or government agency against any DIS Indemnified Parties to the extent that it is based on (i) any claim arising out of User's use of the Software, Documentation or the Services; (ii) any claim with respect to, or arising out of, the User Files, including, without limitation, any claim that such User Files infringe any patent, copyright, trademark, trade secret or other proprietary right or any contractual right or privacy right of any third party; (iii) any claim arising out of any breach by User of any of its representations, warranties, or covenants hereunder; or (iv) any file content deemed to be illegal for User to have in its possession.

9. REPRESENTATIONS AND WARRANTIES.

9.1. User Warranty. User represents and warrants that, at the time it provides any User Files to DIS and at all times during which such User Files are stored in connection with the Services, it is the owner of all such User Files, and all confidential information contained therein, and has full authority to provide the User Files to DIS as contemplated by this Agreement. User represents and warrants that no User Files infringe upon or violate any patent, copyright, trademark, trade secret or other proprietary right or any contractual right or privacy right of any third party. User further represents and warrants that it is duly authorized to enter into this Agreement and make the commitments set forth herein.

9.2. Warranty Disclaimers. USER UNDERSTANDS AND AGREES THAT THE SOFTWARE, THE DOCUMENTATION, THE SERVICES, ANY COMPONENTS THEREOF, AND ANY OTHER MATERIALS ARE PROVIDED STRICTLY "AS IS." DIS, AND ANY THIRD PARTY SERVICE PROVIDERS, SPECIFICALLY DISCLAIM, WITHOUT LIMITATION, ALL WARRANTIES OF ANY KIND TO USER AND OTHER THIRD PARTIES, WHETHER EXPRESS OR IMPLIED, INCLUDING, WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY AND FITNESS FOR A PARTICULAR PURPOSE, ANY AND ALL WARRANTIES OF PERFORMANCE, ANY AND ALL WARRANTIES OF FREEDOM FROM ERRORS OR DEFECTS, ANY AND ALL WARRANTIES OF NON-INFRINGEMENT, AND ANY AND ALL WARRANTIES ARISING FROM A COURSE OF PERFORMANCE, A COURSE OF DEALING OR TRADE USAGE. DIS MAKES NO REPRESENTATION OR WARRANTY AS TO THE TIMELINESS, SECURITY, ACCURACY OR COMPLETENESS OF THE SOFTWARE, THE SERVICES OR ANY INFORMATION CONTAINED IN OR ACCESSED BY OR THROUGH THE SOFTWARE OR THE DOCUMENTATION OR THE SERVICES, OR AS TO THE RESULTS TO BE ATTAINED BY USER OR ANY THIRD PARTY FROM ACCESS TO OR USE OF THE SOFTWARE OR THE SERVICES. USER HEREBY ACKNOWLEDGES THAT IT HAS NOT RELIED UPON ANY REPRESENTATIONS OR WARRANTIES MADE BY DIS. SOME STATES DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES SO THIS LIMITATION MAY NOT APPLY TO YOU.

9.3. Export Controls and Assurances. User understands that the Software and Documentation are subject to regulation by agencies of the United States Government as well as the laws and regulations of other applicable countries which prohibit export, importation or diversion of certain technological products or services to certain countries and individuals. User hereby specifically agrees to comply in all respects with such export, re-export, and/or import restrictions and not to export, or allow the re-export of the Software, Documentation, or any direct product thereof except with all necessary export licenses and approvals. User may not export/import or re-export/import the Licensed Software (or provide to a national of) countries in the US Government Country Group E:1 or E:2 without a license or license exception from the U.S. Department of Commerce nor otherwise violate any provisions of U.S. export laws including exporting to any country to which the U.S. has embargoed goods or to anyone on the U.S. Treasury's list of Specially Designated Nations or the U.S. Commerce Department's Table of Denial Orders. By using the Software, you are agreeing to the foregoing provisions and you are certifying that you are not located in, under the control of, or a national or resident of any such country or on any such list.

10. GENERAL

10.1. Assignment. This Agreement may not be assigned by either party without the prior written consent of the other, and any attempt to assign any rights, duties or obligations which arise under this Agreement without such consent shall be null and void. However, either party may assign this Agreement to any person or entity acquiring all or substantially all of its assets or which is a successor by merger to a party, or with respect to DIS, to any party acquiring DIS' business and/or assets which are related to the Software or the Services. If DIS sells or assigns its business or assets which are related to the Software or the Services, any User Files in DIS' possession at that time shall be transferred to such acquirer in connection with such assignment, and User hereby consents to such transfer.

10.2. Governing Law. This Agreement, and all matters arising directly or indirectly from this Agreement, shall be governed by and construed in accordance with the laws of the State of Montana, without regard to its conflict of laws rules applicable to contracts to be performed entirely within the State of Montana. For all such matters, each party submits to the exclusive jurisdiction of the state and federal courts located in the State of Montana, and waives any jurisdictional, venue, or inconvenient forum objections to such courts.

10.3. Government Use. The Software is a "Commercial Item," as that term is defined at 48 C.F.R 2.101, consisting of "Commercial Computer Software" and "Commercial Computer Software Documentation," as such terms are used in 48 C.F.R. 12.212 and 48 C.F.R. 227.7202, as applicable. Consistent with 48 C.F.R. 12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein. The Software, Documentation and Services have been developed at private expense and are sold commercially to the general public. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in our standard commercial license. Thus, the Software, Documentation and Services referenced herein, and provided by DIS to any agency of the U. S. Government or U. S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations.

10.4. Force Majeure. Neither party shall be liable for any failure or delay in the performance of any of its respective obligations (other than the payment of fees) if prevented from doing so by a cause or causes beyond its reasonable control (a "Force Majeure Event"). Without limiting the generality of the foregoing, Force Majeure Events include: fires, floods, terrorism, strikes, blackouts, war, restraints of government, utility or communications failures or interruptions, failures of third party vendors, Internet slow-downs or failures, computer hackers or other causes that are beyond a party's reasonable control. Failure to meet due dates or time schedules resulting from a Force Majeure Event shall extend the due dates or time schedules for reasonable periods of time as determined by DIS in good faith.

10.5. Entire Agreement. This Agreement and any schedules attached hereto constitute the entire Agreement of the parties with respect to the subject matter hereof and supersede any and all existing agreements relating to the subject matter hereof. To the extent there is any conflict among the terms of this Agreement and any attached schedules, the terms of this Agreement shall control.

10.6. No Waiver. Neither this Agreement nor any provision hereof may be waived, modified, amended or terminated except by written agreement signed by the party affected by such waiver, modification, amendment, or termination. No failure on the part of any party to exercise and no delay in exercising any right, power or remedy under this Agreement shall operate as a waiver thereof, nor shall any single or partial exercise of any right under this Agreement preclude any other or further exercise thereof or the exercise of any other right.

10.7. Cumulative Remedies. No remedy conferred by any provision of this Agreement is intended to be exclusive of any other remedy, and each and every remedy shall be cumulative and shall be in addition to every other remedy given in this Agreement or existing at law or in equity, by statute or otherwise.

10.8. Notices. All notices and other communications required or permitted under this Agreement shall be in writing and sent by electronic mail (email), facsimile, express or overnight delivery service, or by certified mail, postage prepaid, return receipt requested. Notices shall be effective as of the date of receipt.

10.9. Severability. If any provision of this Agreement shall be held to be illegal, invalid or unenforceable, such illegality, invalidity or unenforceability shall apply only to such provision and shall not in any manner affect or render illegal, invalid or unenforceable any other provision of this Agreement, and that provision and this Agreement generally shall be reformed, construed and enforced so as to most nearly give lawful effect to the intent of the parties as expressed in this Agreement.

10.10. Counterparts. This Agreement may be executed in counterparts, each of which shall be deemed an original, but which together shall constitute one and the same instrument.

10.11. No Third Party Beneficiaries. This Agreement shall be binding upon and inure solely to the benefit of the parties. The parties intend that there shall be no third party beneficiaries under this Agreement, and that no person or entity, except the parties, shall have any rights or remedies under this Agreement, including the right to bring any action on account of its breach or in any relation to it whether in contract, in tort, or otherwise.

10.12. Headings. The headings preceding the various paragraphs and subparagraphs of this Agreement are intended solely for the convenience of the parties and shall not be deemed relevant in the construction of this Agreement or its terms.

10.13. Survival. The obligations under Sections 4, 5, 6.5, 6.6, 7, 8, 9 and 10.2 (and this Section 10.14) shall survive the termination or expiration of this Agreement.
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