Stealthsync, LLC
Online Services Terms
Last Updated March 25, 2018

These Online Services Terms (the "Terms") cover the use of any of the online services (the "Services") hosted by Stealthsync, LLC ("Stealthsyc"). The Services previously had seperate terms subscribed to by the Subscriber under different agreeements that were titled different names, such as the Consulting and Services Contractual Agreement, the Web Portal Subscription Agreement, the Consulting Support Agreement, and amendments thereto (the "Agreements").

The Terms replace those seperate terms contained in the Agreements at the end of the initial term of the Agreements signed by the Subscibers. Each Subscriber accepts the Terms through the continued use of the Services after the end of the initial terms of the Agreements.

Stealthsync retains all right, title, and interest in and to the Services, including without limitation, all software used to provide the Services and all logos and trademarks reproduced through the Services, and the Terms do not grant Subscriber any intellectual property rights in the Services or any of its components.

Stealthsync may revise the Terms by posting a new version of the terms on this website.

Right to use

Stealthsync grants Subscriber the right to access and use the Services and to install and use the software included with Subscriber’s Subscription, as further described in the Terms. Stealthsync retains all right, title, and interest in and to the Services, including without limitation all computers, other hardware, and software incorporated into or used by the Services, and the Terms do not grant Subscriber any intellectual property rights in the Services or any of their components.

Subscriber may use the Services only in accordance with the Terms. Subscriber may not reverse engineer, decompile, disassemble, or work around technical limitations in the Services, except to the extent applicable law permits it despite these limitations. Subscriber may not disable, tamper with, or otherwise attempt to circumvent any billing mechanism that meters Subscriber’s use of the Services. Subscriber may not rent, lease, lend, resell, transfer, or host the Services, or any portion thereof, to or for third parties except as expressly permitted in the Terms.

Customer Data

Subscriber is solely responsible for the content of all Customer Data. Subscriber shall secure and maintain all rights in Customer Data necessary for Stealthsync to provide the Services to Subscriber without violating the rights of any third party or otherwise obligating Stealthsync to Subscriber or to any third party. Stealthsync does not and will not assume any obligations with respect to Customer Data or to Subscriber’s use of the Product other than as expressly set forth in the Terms or as required by applicable law.

End Users

Subscriber is responsible for and controls the access of the Services by End Users, and Subscriber is responsible for Subscriber’s and End Users’ use of the Services in accordance with the Terms.

Responsibility for Subscriber accounts

Subscriber is responsible for maintaining the confidentiality of any non-public authentication credentials associated with Subscriber’s use of the Services. Subscriber must promptly notify Stealthsync’s customer support team about any possible misuse of Subscriber’s accounts or authentication credentials or any security incident related to the Services.

Confidentiality

“Confidential Information” refers to the following items one party to the Terms (“Discloser”) discloses to the other (“Recipient”): (i) any document Discloser marks “Confidential”; (ii) any information Discloser orally designates as “Confidential” at the time of disclosure; (iii) any source code disclosed by Stealthsync and any names of actual or potential customers disclosed to Subscriber, whether or not marked as confidential; and (iv) any other nonpublic, sensitive information Recipient should reasonably consider a trade secret or otherwise confidential.

Notwithstanding the foregoing, Confidential Information does not include information that: (i) is in Recipient’s possession at the time of disclosure; (ii) is independently developed by Recipient without use of or reference to Confidential Information; (iii) becomes known publicly, before or after disclosure, other than as a result of Recipient’s improper action or inaction; or (iv) is approved for release in writing by Discloser.

Recipient agrees that breach of this Section would cause Discloser irreparable injury, for which monetary damages would not provide adequate compensation, and that in addition to any other remedy, Discloser will be entitled to injunctive relief against such breach or threatened breach, without proving actual damage or posting a bond or other security.

The obligations of this Section shall terminate (2) two years after Termination of the Terms or the most recent Subscription Agreement or any renewal thereof; provided such obligations related to Confidential Information constituting Discloser’s trade secrets will continue so long as such information remains subject to trade secret protection pursuant to applicable law. Upon termination of the Terms and any Subscription, Recipient shall return all copies of Confidential Information to Discloser or certify, in writing, the destruction thereof.

The Terms do not transfer ownership of Confidential Information or grant a license thereto. Except to the extent that another section of the Terms specifically provides to the contrary, Discloser will retain all right, title, and interest in and to all Confidential Information.

Pursuant to the Defend Trade Secrets Act of 2016, 18 USC Section 1833(b), Recipient is on notice and acknowledges that, notwithstanding the foregoing or any other provision of this Agreement:
  • Immunity. An individual shall not be held criminally or civilly liable under any Federal or State trade secret law for the disclosure of a trade secret that: (a) is made (i) in confidence to a Federal, State, or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law; or (b) is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.
  • Use of Trade Secret Information in Anti-Retaliation Lawsuit. An individual who files a lawsuit for retaliation by an employer for reporting a suspected violation of law may disclose the trade secret to the attorney of the individual and use the trade secret information in the court proceeding, if the individual: (a) files any document containing the trade secret under seal; and (b) does not disclose the trade secret, except pursuant to court order.
Data Management & Security
  • Access, Use, & Legal Compulsion. Unless it receives Subscriber’s prior written consent, Stealthsync: (i) shall not access, process, or otherwise use Customer Data other than as necessary to facilitate the Online Services; (ii) shall not give any of its employees access to Customer Data except to the extent that such individual needs access to facilitate performance under the Terms; and (iii) shall not give any third party access to Customer Data, including without limitation, Stealthsync’s other customers. Notwithstanding the foregoing, Stealthsync may disclose Customer Data as required by applicable law or by proper legal or governmental authority. Stealthsync shall give Subscriber prompt notice of any such legal or governmental demand and reasonably cooperate with Subscriber in any effort to seek a protective order or otherwise to contest such required disclosure, at Subscriber’s expense.
  • Subscriber’s Rights. Subscriber possesses and retains all right, title, and interest in and to Customer Data, and Stealthsync’s use and possession thereof is solely on Subscriber’s behalf. Subscriber may access and copy any of its Customer Data in Stealthsync’s possession at any time, and Stealthsync shall reasonably facilitate such access and copying promptly after Subscriber’s request.
  • Excluded Data Laws. Subscriber represents and warrants that Customer Data does not and will not include, and Subscriber has not and shall not upload or transmit to Stealthsync’s computers or other media, any data regulated pursuant to any excluded data laws. Subscriber recognizes and agrees that: (i) Stealthsync has no liability for any failure to provide protections set forth in the excluded data laws or otherwise to protect excluded data; and (ii) Stealthsync’s systems are not intended for management or protection of excluded data and may not provide adequate or legally required security for excluded data.
  • Data Security. Stealthsync shall maintain, implement, and comply with a data security program that requires commercially reasonable policies and procedures to ensure compliance with this Section 6. The program’s policies and procedures shall contain administrative, technical, and physical safeguards, including without limitation: (i) guidelines on the proper disposal of Customer Data after it is no longer needed to carry out the purposes of the Terms; (ii) access controls on electronic systems used to maintain, access, or transmit Customer Data; (iii) access restrictions at physical locations containing Customer Data; (iv) encryption of electronic Customer Data; (v) dual control procedures; (vi) testing and monitoring of electronic systems; and (vii) procedures to detect actual and attempted attacks on or intrusions into the systems containing or accessing Customer Data.
  • Data Breaches. Stealthsync shall implement and maintain a program for managing unauthorized disclosure or exposure of Customer Data stored by or accessible through the Online Services. In the event of a breach, or in the event that Stealthsync suspects a breach, Stealthsync shall (i) promptly notify Subscriber by telephone and (ii) cooperate with Subscriber and law enforcement agencies, where applicable, to investigate and resolve the breach. Other than Stealthsync’s obligations under this Section, Stealthsync shall not be responsible or liable in damages or otherwise to Subscriber or any of Subscriber’s customers and/or end users for any loss, damages, or other liability resulting from a data breach. Stealthsync shall give Subscriber prompt access to such records related to a breach as Subscriber may reasonably request; provided such records shall be Stealthsync’s Confidential Information and Stealthsync shall not be required to provide Subscriber with records belonging to, or compromising the security of, its other customers.
Defense of claims
Defense.
  • Stealthsync shall defend Subscriber against any claims made by an unaffiliated third party that a Service infringes that third party's patent, copyright or trademark or makes unlawful use of its trade secret.
  • Subscriber shall defend Stealthsync against any claims made by an unaffiliated third party that (1) any Customer Data, Customer Solution, or Non-Stealthsync Products, or services Subscriber provides, directly or indirectly, in using a Stealthsync Service(s) or Service(s) infringes the third party's patent, copyright, or trademark or makes unlawful use of its trade secret; or (2) arises from violation of the Acceptable Use Policy.

Limitations.Stealthsync’s obligations in this Section won't apply to a claim or award based on: (i) any Customer Solution, Customer Data, Non-Stealthsync Products, modifications Subscriber makes to the Service, or services or materials Subscriber provides or makes available as part of using the Service; (ii) Subscriber’s combination of the Service with, or damages based upon the value of, Customer Data, or a Non-Stealthsync Service, data, or business process; (iii) Subscriber’s use of a Stealthsync trademark without Stealthsync’s express written consent, or Subscriber’s use of the Service after Stealthsync notifies Subscriber to stop due to a third-party claim; (iv) Subscriber’s redistribution of the Service to, or use for the benefit of, any unaffiliated third party; or (v) Products provided free of charge.

Remedies.If Stealthsync reasonably believes that a claim under this Section may bar Subscriber’s use of the Service, Stealthsync will seek to: (i) obtain the right for Subscriber to keep using it; or (ii) modify or replace the Services with a functional equivalent and notify Subscriber to stop use of the prior version of the Services. Stealthsync’s defense obligations as contemplated in this Section shall cease immediately for any all claims and/or damages resulting from Subscriber(s) continued use of the offending Services or Service accruing after Stealthsync’s notification and/or provision of a functional equivalent Services/service. If these options are not commercially reasonable, Stealthsync may terminate Subscriber’s rights to use the Services and refund any advance payments for unused Subscription rights.

Obligations.Each party must notify the other promptly of a claim under this Section. The party seeking protection must (i) give the other sole control over the defense and settlement of the claim; and (ii) provide reasonable help, including access to documents and data, in defending the claim. The party providing the protection will (1) reimburse the other for reasonable out-of-pocket expenses that it incurs in providing that help and (2) pay the amount of any resulting adverse final judgment or settlement. The parties' respective rights to defense and payment of judgments (or settlement the other consents to) under this Section 7 are in lieu of any common law or statutory indemnification rights or analogous rights, and each party waives such common law or statutory rights.

Limitation of Liability

Limitation. The aggregate liability of each party for all claims under the Terms contained herein is limited to direct damages up to the amount paid under the Terms the Services during the twelve (12) month period before the cause of action arose; provided, that in no event shall a party's aggregate liability for any of the Services exceed the amount paid for the Services during the Subscription. For Services provided free of charge, Stealthsync's liability is limited to direct damages up to $1.00 USD.

EXCLUSION. Neither party shall be liable for loss of revenue or indirect, special, incidental, consequential, punitive, or exemplary damages, or damages for lost profits, revenues, business interruption, or loss of business information, even if the party knew the damages were possible or reasonably foreseeable.

Exceptions to limitations. The limits of liability in this Section shall apply to the fullest extent permitted by applicable law, but do not apply to: (1) the parties' obligations under the "Defense of Claims" Section; or (2) violation of the other's intellectual property rights.

Clarification and Disclaimers. The liabilities limited by this Section apply: (a) to liability for negligence; (b) regardless of the form of action, whether in contract, tort, strict product liability, or otherwise; (c) even if Stealthsync is advised in advance of the possibility of the damages in question and even if such damages were foreseeable; and (d) even if Subscriber’s remedies fail of their essential purpose, If applicable law limits the application of the provisions of this Section, Stealthsync’s liability will be limited to the maximum extent permissible.

Dispute Resolution
  • Initial Dispute Resolution Process. If either party believes that a controversy exists as to the construction, computation, determination, or application of any of the terms of the Terms, said party shall provide written notice to the other party clearly stating the nature of the dispute and such party’s position on the matter. If the parties cannot resolve the dispute within ten (10) days of the provision of such notice, the matter shall be submitted for settlement by binding arbitration as set forth in this Section of the Terms.
  • Binding Arbitration. If the matter is unresolved after the process described in this Section, the parties’ shall submit the matter to binding arbitration as described herein. Subject to the terms of the Terms, in the event of any claims, controversies or disputes regarding the Terms, any and all other claims, disputes or controversies between the parties to the Terms or arise out of or is in any way related to the Terms, including, without limitation, questions and disputes concerning the breach and enforceability of the Terms, whether based on statute, contract, tort or other legal theory, shall be submitted to, and decided solely by, binding arbitration under the terms and provisions of the American Arbitration Association Commercial Arbitration Rules. Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association in accordance with its Commercial Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be entered in any court having jurisdiction thereof.
  • Claims shall be heard by a single arbitrator. The arbitrator(s) shall be qualified and/or licensed in Commercial Litigation. The place of arbitration shall be Jefferson County, Alabama. The arbitration shall be governed by the laws of the State of Alabama. Hearings will take place pursuant to the standard procedures of the Commercial Arbitration Rules that contemplate in person hearings. Time is of the essence for any arbitration under the Terms and arbitration hearings shall take place within 90 days of filing and awards rendered within 120 days. Arbitrator(s) shall agree to these limits prior to accepting appointment. The arbitrators will have no authority to award punitive or other damages not measured by the prevailing party's actual damages, except as may be required by statute. The arbitrator(s) shall not award consequential damages in any arbitration initiated under this Section. Any award in an arbitration initiated under this clause shall be limited to monetary damages and shall include no injunction or direction to any party other than the direction to pay a monetary amount. The standard provisions of the Commercial Rules shall apply. Arbitrators will have the authority to allocate the costs of the arbitration process among the parties, but will only have the authority to allocate attorneys' fees if a particular law permits them to do so. The award of the arbitrators shall be accompanied by a reasoned opinion. Except as may be required by law, neither a party nor an arbitrator may disclose the existence, content, or results of any arbitration hereunder without the prior written consent of both parties. The parties agree that failure or refusal of a party to pay its required share of the deposits for arbitrator compensation or administrative charges shall constitute a waiver by that party to present evidence or cross-examine witness. In such event, the other party shall be required to present evidence and legal argument as the arbitrator(s) may require for the making of an award. Such waiver shall not allow for a default judgment against the non-paying party in the absence of evidence presented as provided for above.
Independent Contractors

The parties are independent contractors and will so represent themselves in all regards. Neither party is the agent of the other, and neither may make commitments on the other’s behalf. The parties agree that no Stealthsync employee or contractor will be an employee of Subscriber. Stealthsync shall not be responsible for any employment rights and benefits of Subscriber and its employees, including without limitation: (a) federal, state, and local income and employment taxes and social security contributions; (b) workers’ compensation, health benefits, vacation pay, holiday pay, profit sharing, retirement, pension, disability benefits, and other health and welfare benefits, plans, or programs; or (c) insurance.

Warranties

Stealthsync provides no warranties, whether express, implied, statutory, or otherwise, including warranties of merchantability or fitness for a particular purpose. These disclaimers shall apply to the fullest extent permitted under applicable law.

Miscellaneous

Notices. Subscriber shall send notices by mail, return receipt requested, to the address below:

Stealthsync LLC
P. O. Box 530986
Mountain Brook, AL 35253

Subscriber agrees to receive electronic notices from Stealthsync, which will be sent by email to the account administrator Subscriber specifies in the Portal. Notices are effective on the date on the return receipt or, for email, when sent. Subscriber is responsible for ensuring that the account administrator email address that Subscriber specifies in the Portal is accurate and current. Any email notice that Stealthsync sends to that email address shall be effective when sent, whether or not Subscriber actually receives the email.

Assignment. Neither party may assign the Terms or any of its rights or obligations hereunder without the other’s express written consent, except that either party may assign the Terms to the surviving party in a merger of that party into another entity or in an acquisition of all or substantially all that party’s assets. An assignment authorized pursuant to the preceding sentence shall not become effective unless and until the assignee agrees in writing to be bound by all the assigning party’s rights and obligations set forth in the Terms. Except to the extent forbidden in this Section, the Terms will be binding upon and inure to the benefit of the parties’ respective successors and assigns.

Use of Trademarks. During the Term of the Terms, Subscriber hereby grants Stealthsync a license to include Subscriber’s primary logo, in customer lists, press releases, and advertising. Goodwill associated with the logo inures solely to Subscriber, and Stealthsync shall take no action to damage the goodwill associated with the logo or with Subscriber.

Severability. To the extent permitted by applicable law, the parties hereby waive any provision of law that would render any clause of the Terms invalid or otherwise unenforceable in any respect. In the event that a provision of the Terms is held to be invalid or otherwise unenforceable, such provision will be interpreted to fulfill its intended purpose to the maximum extent permitted by applicable law, and the remaining provisions of the Terms will continue in full force and effect.

No Waiver. Neither party will be deemed to have waived any of its rights under the Terms by lapse of time or by any statement or representation other than by an authorized representative in an explicit written waiver. No waiver of a breach of the Terms will constitute a waiver of any other breach of the Terms.

No agency. The Terms does not create an agency, partnership, or joint venture.

Governing Law. The Terms, the rights and obligations of the parties hereunder, and any dispute arising hereunder, shall be governed and construed in accordance with the laws of the State of Alabama without regard to the conflict of laws provisions thereof. Any legal suit, action or proceeding arising out of or related to the Terms or the matters contemplated hereunder shall be instituted exclusively in the federal courts of the United States or the courts of the State of Alabama in each case located in the city of Birmingham and County of Jefferson, and each party irrevocably submits to the exclusive jurisdiction of such courts in any suit, action or proceeding and waives any objection based on improper venue or forum non conveniens. Service of process, summons, notice or other document by mail to such party’s address set forth on the signature page below shall be effective service of process for any suit, action or other proceeding brought in any such court. THIS CHOICE OF JURISDICTION DOES NOT PREVENT STEALTHSYNC FROM SEEKING INJUNCTIVE RELIEF IN ANY APPROPRIATE JURISDICTION WITH RESPECT TO VIOLATION OF INTELLECTUAL PROPERTY RIGHTS.

Amendment. The Terms may not be modified except in a written agreement signed by authorized representatives of both parties.

Entire agreement.The Terms is the entire agreement concerning its subject matter and supersedes any prior or concurrent communications. In the case of a conflict between the Terms and the documents referred to in the Terms, unless such conflict is expressly resolved within those respective documents, the conflict shall be resolved with controlling terms to be determined in the following order of descending priority: (1) Stealthsync Web Portal Subscription Agreement, (2) Online Services Terms, (3) applicable Offer Details, and (4) any other documents in the Terms.

Survival. The terms shall survive termination or expiration by either party.

U.S. export jurisdiction. The Products are subject to U.S. export jurisdiction. Subscriber must comply with all applicable laws, including the U.S. Export Administration Regulations, the International Traffic in Arms Regulations, and end-user, end-use and destination restrictions issued by U.S. and other governments.

Force majeure. Neither party shall be liable for any failure in performance due to causes beyond that party's reasonable control (such as fire, explosion, power blackout, earthquake, flood, severe storms, strike, embargo, labor disputes, acts of civil or military authority, war, terrorism (including cyber terrorism), acts of God, acts or omissions of Internet traffic carriers, actions or omissions of regulatory or governmental bodies (including the passage of laws or regulations or other acts of government that impact the delivery of the Services)). This Section shall not, however, apply to Subscriber’s payment obligations under the Terms.

Contracting authority. If Subscriber is an individual accepting the Terms on behalf of an entity, said individual represents that he/she has the legal authority to enter into the Terms on that entity's behalf. If an individual specifies an entity, or an individual uses an email address provided by an entity the individual is affiliated with (such as an employer) in connection with a Subscription Purchase or Renewal, that entity will be treated as the owner of the Subscription for purposes of the Terms.