Legal
“Failkit”, “we”, “us” means Failkit, Inc., a Delaware corporation. “Customer”, “you” means the entity entering into these terms. “Service” means the Failkit disaster-recovery platform, including the management plane at failkit.com, per-tenant portals at <customer>.failkit.com, and replication agents installed in your environment. “Customer Data” means data Customer or its end users submit to the Service, and replicated VM payloads stored in Customer’s own cloud accounts.
You must register for an account to use the Service. You agree to provide accurate information, keep credentials secure, and promptly notify us of any unauthorized access. You are responsible for all activity under your account.
We may suspend access if your account is past due, if your use violates these terms, or if we are required to do so by law. Where practical we will notify you before suspension.
You agree not to:
Subscriptions are billed per protected VM per month, on the tier you select on the Pricing page. Annual prepay receives the published discount. Overage is invoiced monthly at the next-tier rate.
Fees are due net-30 from invoice date. Late payments accrue interest at the lesser of 1.5% per month or the maximum rate permitted by law. Customer is responsible for taxes other than Failkit’s income taxes.
The Service targets 99.9% monthly uptime for Professional tier and 99.95% for Enterprise. Service credits for missed targets are documented in the customer dashboard. Drill outcomes are Customer’s responsibility; Failkit guarantees the platform is available, not that any specific drill will succeed.
Security and isolation commitments are described on the Security page.
Customer retains all rights in Customer Data. Customer grants Failkit a limited, non-exclusive license to process Customer Data solely to provide the Service.
Failkit retains all rights in the Service, the Failkit name and marks, and any feedback Customer provides. Replicated VM payloads are stored in Customer’s own cloud accounts; Failkit does not take custody of those payloads.
Each party will protect the other’s confidential information with the same care it uses for its own (and no less than reasonable care). Confidential information may be disclosed only to employees, contractors, or advisors with a need to know who are bound by similar confidentiality obligations.
Each party warrants that it has the authority to enter into these terms.
EXCEPT AS EXPRESSLY STATED, THE SERVICE IS PROVIDED “AS IS” WITHOUT WARRANTIES OF ANY KIND, INCLUDING IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE, AND NON-INFRINGEMENT.
EACH PARTY’S AGGREGATE LIABILITY UNDER THESE TERMS WILL NOT EXCEED THE FEES PAID OR PAYABLE BY CUSTOMER IN THE TWELVE MONTHS PRECEDING THE CLAIM. Neither party will be liable for indirect, consequential, incidental, or punitive damages, or loss of revenue, profit, or data, except for breaches of confidentiality or indemnification obligations.
Failkit will defend Customer against any third-party claim that the Service infringes a U.S. patent, copyright, or trade secret, and will pay damages finally awarded, provided Customer promptly notifies Failkit and gives Failkit sole control of the defense.
Customer will defend Failkit against any third-party claim arising from Customer Data, Customer’s use of the Service in violation of these terms, or Customer’s combination of the Service with products Failkit did not provide.
These terms remain in effect for the subscription term you selected. Either party may terminate for material breach not cured within 30 days of written notice. On termination, Customer’s access ends and Customer is responsible for exporting data before the termination date. Failkit will retain Customer Data for 30 days after termination, after which it will be deleted unless legally required to be retained.
These terms are governed by the laws of the State of Delaware, without regard to conflict-of-laws principles. The parties agree to resolve disputes through binding arbitration administered by the American Arbitration Association in Wilmington, Delaware, under its Commercial Arbitration Rules. Either party may seek injunctive relief in court for intellectual-property or confidentiality claims.
We may update these terms from time to time. Material changes will be announced at least 30 days in advance via email and a notice on the customer portal. Continued use after the effective date constitutes acceptance.
Questions about these terms? Email [email protected].