Terms of Service

Last updated: September 3, 2025

1. Acceptance of Terms

These Terms of Service (“Terms”) are a binding agreement between you (“you,” “your,” or “Client”) and Backup Failed Foundation (“Backup Failed,” “we,” “us,” or “our”). By accessing or using our services—including but not limited to IT consulting, managed services, hosted solutions, and SMS communications—you agree to comply with and be bound by these Terms, as well as all applicable laws and regulations. If you do not agree to these Terms, you must not use our services. Your continued use after updates are posted constitutes acceptance of the revised Terms.

If you provide a phone number and consent, you agree we may contact you by SMS or phone for service‑related purposes. No marketing messages will be sent. Message and data rates may apply. You may opt out of SMS at any time by replying STOP.

2. Services & Eligibility

Backup Failed provides IT consulting, managed services, and related technology solutions to nonprofits and businesses. While our primary operations are based in the United States, our services may be available to organizations in other countries. Certain offerings, including SMS communications, may be limited or unavailable outside the U.S. depending on local laws, carriers, or provider restrictions. By using our services, you represent that your use is lawful in your jurisdiction and that you have the authority to enter into these Terms on behalf of yourself or your organization.

3. User Accounts & Data

Some services may require the creation of an account or the provision of contact information (including email addresses and mobile numbers). You agree to provide accurate, complete, and current information and to keep it updated. You are responsible for maintaining the confidentiality of your login credentials and for all activities that occur under your account. We reserve the right to suspend or terminate accounts that are incomplete, inaccurate, or used in violation of these Terms. Your personal information and communications data are handled in accordance with our Privacy Policy.

4. Fees & Payments

Backup Failed offers both free and paid services. Paid services are billed according to the rates or agreements outlined in your invoice, service order, or written contract. Payment is due by the date stated on the invoice and must be made in U.S. dollars using the methods we accept. Unless otherwise noted, payments are non-refundable once services have begun. Prepaid services, including software licensing bundles or block hours, are considered earned at the time of activation and cannot be refunded if service is discontinued. If you believe a charge is incorrect, you must let us know in writing within ten (10) business days of the invoice date so we can review it. We may adjust pricing or fees in the future, but will provide at least thirty (30) days’ notice before any changes take effect, unless you are under a fixed-term agreement that states otherwise.

5. Service Availability & Limitation of Liability

We make every effort to provide reliable and secure services; however, you acknowledge and agree that no service can be guaranteed to be uninterrupted, error-free, or free from delays. This includes, without limitation, failures or disruptions caused by internet outages, third-party service providers such as Microsoft or Twilio, natural disasters, or events beyond our reasonable control. All services are provided “as is” and “as available” without warranties of any kind, whether express or implied, including but not limited to warranties of merchantability, fitness for a particular purpose, or non-infringement. To the fullest extent permitted by law, Backup Failed shall not be liable for any indirect, incidental, special, consequential, or punitive damages, including loss of revenue, profits, goodwill, data, or business opportunities, even if we have been advised of the possibility of such damages. Our maximum total liability for any claim arising out of or relating to our services shall not exceed the amount you paid us for services in the twelve (12) months preceding the event giving rise to the claim. You expressly acknowledge that SMS communications may be subject to carrier delays, filtering, or failures, and that Backup Failed is not responsible for messages that are delayed, blocked, or undelivered.

6. Acceptable Use

You agree to use our services only for lawful purposes and in a manner consistent with these Terms of Service and all applicable laws and regulations. You must not use our services in connection with fraudulent, abusive, harassing, or otherwise unlawful activity, nor may you attempt to gain unauthorized access to any system or network. Activities that disrupt or interfere with the normal operation of our infrastructure or the experience of other clients are strictly prohibited. You may not use SMS services to send unsolicited or unauthorized messages, to distribute prohibited content such as hate speech, pornography, or controlled substances, or in any way that violates the rules of our carriers or providers, including Twilio’s Acceptable Use Policy. You may not misrepresent your identity or affiliation when using our services, nor may you upload or transmit materials that infringe the intellectual property rights of others. Backup Failed reserves the right to investigate suspected violations and to suspend or terminate services that, in our sole discretion, are used in violation of this Acceptable Use section.

7. Geographic Restrictions

Our services are operated from the United States, but may be accessible to clients in other regions. We do not guarantee that every feature, including SMS delivery or third-party integrations, will function the same way outside the United States. If you choose to access or use our services from another location, you are responsible for complying with local laws and regulations. Backup Failed makes no representation that our services are appropriate, permitted, or available for use in every jurisdiction.

8. Changes to Terms

We may update or modify these Terms of Service at any time. When changes are made, we will update the “Last Updated” date at the top of this page. Significant changes may also be communicated by email or other reasonable means if you have an active account with us. Continued use of our services after changes take effect will constitute your acceptance of the revised Terms. If you do not agree to the new Terms, you must discontinue your use of our services.

9. SMS Messaging Terms

By providing mobile phone numbers and opting into SMS messaging, you consent to receive informational and transactional messages from Backup Failed Foundation and our service providers (for example, Twilio). Message frequency varies based on service activity. Standard message and data rates from your carrier may apply. You can opt out of non-essential messages at any time by replying STOP to a message, or by following the alternative unsubscribe instructions provided in the message. Opting out will not affect transactional or service-related messages necessary to maintain your account. We are not responsible for delays, failures, or carrier filtering that prevent message delivery. You must comply with all applicable laws, including obtaining any required consent for recipients when sending messages through our services.

10. Intellectual Property

The name “Backup Failed Foundation,” our logos, designs, service names, website content, documentation, training materials, and any other original works we create are proprietary to us. These materials may be protected by copyright, trademark, trade dress, or other intellectual property laws, whether or not they are formally registered. You may not copy, reproduce, distribute, display, or publish our materials on any medium, including websites, social platforms, or subscription-based services, without our prior written permission. This restriction applies even if attribution or credit is provided. You also may not modify our materials or create derivative works from them in a way that implies endorsement, partnership, or co-ownership.

Limited personal use of our publicly available resources—for example, linking to our website or downloading a copy for your own reference—is permitted. However, republication, redistribution, or hosting our materials on your own platform, whether free or behind a paywall, is not allowed without our explicit written authorization. We reserve the right to enforce these protections and to seek appropriate remedies in the event of unauthorized use.

All data, files, and materials that you provide to us remain your property. By submitting or sharing them with us, you grant Backup Failed Foundation a limited license to access, use, and process that material solely as needed to deliver consulting, managed services, or related support. We do not claim ownership of your content and will not use it for purposes beyond delivering services to you, except as otherwise permitted by law or a separate written agreement.

In some cases, our services may include software, tools, or content licensed from third parties. Your use of such third-party components is subject to their respective license agreements, and nothing in these Terms grants you rights beyond what those agreements allow.

11. Third-Party Services

Our services often rely on third-party platforms and providers, including but not limited to Microsoft, Google, Twilio, Bitdefender, and other technology vendors. While we may integrate, configure, or manage these services on your behalf, Backup Failed Foundation does not own or control them and cannot guarantee their uptime, pricing, or long-term availability. Your use of third-party services may be subject to additional terms, conditions, or licensing agreements set by the provider. It is your responsibility to review and comply with those agreements, and nothing in these Terms overrides the obligations you may have under them. Backup Failed is not liable for outages, delays, data loss, or changes in functionality caused by third-party providers. However, part of our role as a managed service provider is to act on your behalf when issues with third-party services arise. This includes opening and managing support tickets, escalating problems through the vendor’s channels, and making best efforts to resolve or minimize disruption to your business. We cannot promise resolution timelines for issues outside of our control, but we do commit to working diligently to advocate for you with third-party providers.

12. Termination and Suspension

You and Backup Failed Foundation may end the working relationship, but it must be clear how termination occurs and what follows. You may terminate at any time by providing written notice. If you are on a fixed-term agreement or have prepaid services, the terms of that agreement control; otherwise, termination takes effect at the end of the current billing period. Fees already paid are not refundable once services have begun, and any amounts accrued but unpaid through the effective date of termination remain due. If a separate contract includes an early-termination clause or minimum commitment, that clause applies. We may suspend or terminate services, in whole or in part, if you materially breach these Terms or any applicable service order; if you fail to pay when due; if you reverse or charge back a payment; if your payment method is invalid or repeatedly fails; if your use creates a security or operational risk to our systems or other clients; if you use services in violation of law, the Acceptable Use section, or carrier/Twilio rules; if you refuse to implement a critical security remediation we reasonably require within a stated timeframe; if you are or become subject to trade sanctions, export restrictions, or similar legal prohibitions; if you misuse credentials, attempt unauthorized access, or permit unmanaged third parties to do so; if you materially misrepresent your identity or authorization; if you engage in abusive, harassing, or threatening conduct toward our personnel; if a change in control or ownership creates a conflict of interest or compliance risk we cannot reasonably resolve; if you become insolvent, enter bankruptcy, or cease business operations; or if a third-party provider discontinues, restricts, or materially alters a dependency in a way that prevents us from delivering the affected portion of the services. In situations that threaten security, integrity, payment integrity, or legal compliance, we may suspend immediately and will notify you promptly with the reason for the action and what is required to restore service. Where practical and appropriate, we will allow a reasonable cure period for remediable breaches; emergencies and unlawful activity may be acted on without a cure period. If you discontinue use without notice—such as by stopping payment, becoming unresponsive for thirty (30) consecutive days, or revoking the access needed for us to perform our work—we may treat that as termination for convenience effective on the last day of that thirty-day period or on the date access was revoked, whichever occurs first. In that case, we will cease work, all amounts accrued to date remain due, and pass-through costs for third-party services we activated on your behalf remain your responsibility through the end of their current billing cycles or committed terms. We will not be responsible for service lapses resulting from your failure to provide notice, access, or payment. Because our services rely on outside vendors, a vendor’s decision to discontinue, modify, or restrict its offering may require us to change, suspend, or end related features. We do not control those decisions, but as your managed service provider we will act on your behalf: we will open and manage support tickets, escalate through the vendor’s channels, and make best efforts to resolve or minimize disruption. We do not promise timelines for issues outside our control. Upon termination for any reason, your access to our portals, tooling, and managed environments we control ends as of the effective date. At your written request within thirty (30) days after termination, we will provide a commercially reasonable export of client-provided data and configuration information that we actually possess and control. This export does not include our internal notes, playbooks, scripts, tooling, or other materials that constitute our intellectual property. After the thirty-day window, we may delete client-provided data from active systems and will delete it from backups during our normal retention cycle, except where retention is required by law or necessary to establish, exercise, or defend legal claims. We may retain de-identified operational metrics and logs. If you request transition assistance—such as handing off documentation, coordinating with a new provider, transferring tenant ownership, or reconfiguring third-party services—we will provide reasonable cooperation. Unless otherwise stated in a separate agreement, transition work is billed at our then-current rates and scheduled subject to availability. You are responsible for ensuring continuity of licensing and payment obligations with third-party providers; where possible, we will help transfer or assign accounts that are in your organization’s name, but we cannot guarantee a vendor will approve a transfer. If a force majeure event prevents a party from performing for more than thirty (30) consecutive days, either party may terminate the affected services on written notice without liability other than payment for services rendered and non-cancelable pass-through costs incurred before the effective date. All obligations that by their nature should survive termination do survive, including confidentiality, intellectual property, limitations of liability, disclaimers, and payment of amounts due. Termination or suspension does not limit any other rights or remedies available to either party.

13. Indemnification

You agree to defend, indemnify, and hold harmless Backup Failed Foundation and our directors, officers, employees, and contractors from and against any claim, demand, action, investigation, fine, penalty, loss, liability, damage, cost, or expense (including reasonable attorneys’ fees) arising out of or related to your acts or omissions, your content or data, your misuse of the services, or your failure to comply with these Terms, applicable laws, or third-party provider rules. This includes claims alleging unauthorized or unlawful communications, violations of carrier and A2P 10DLC requirements, lack of required consent for SMS or email outreach, infringement or misappropriation of intellectual property or privacy rights based on materials you supplied, security incidents resulting from your configurations or refusal to implement recommended remediations, and any use of third-party services in a way that breaches their terms. If a claim is brought against us that is attributable to your conduct or materials, we will promptly notify you and provide reasonable cooperation at your expense. You will control the defense and settlement of the claim, except that you may not settle any matter that imposes an admission of fault, a financial obligation on us beyond amounts you agree to pay, or any non-monetary obligation on us, without our prior written consent. We may participate in the defense with counsel of our own choosing at our own expense. If a claim reasonably implicates both parties or creates a conflict of interest, we may assume control of our defense while you remain responsible for the indemnified losses to the extent they arise from your conduct or materials. We also stand behind our own work. Subject to the exclusions below and the liability limits elsewhere in these Terms, we will defend, indemnify, and hold you harmless from third-party claims alleging that our proprietary materials, when provided by us and used by you as permitted under these Terms, directly infringe a United States copyright or trademark, or misappropriate a trade secret. If such a claim arises, we may, at our option, procure the right for you to continue using the affected material, replace or modify it so it is non-infringing with materially equivalent functionality, or terminate the affected portion of the services and, if you prepaid fees specifically for that portion, refund the unused, prorated amount as your sole and exclusive remedy for that claim. Our indemnity does not apply to claims that arise from your content or configurations, from use of third-party products or services, from combinations of our materials with items we did not supply, from modifications you or a third party made without our written approval, from your use in violation of these Terms or documentation, or from your failure to install updates or changes we make available for the purpose of avoiding an alleged infringement. Open-source and third-party components are governed by their own licenses; any indemnity for those components, if any, is provided by the original licensor and not by us. Each party must promptly notify the other of any claim for which it seeks indemnity and must provide the information and cooperation reasonably requested to conduct the defense, provided that a delay in notice will not relieve the indemnifying party of its obligations except to the extent it is materially prejudiced. The obligations in this Section 13 are in addition to, and not in lieu of, any other remedies available at law or in equity, and they survive termination.

14. Dispute Resolution and Governing

Before either of us files a claim, we both agree to try to resolve the issue informally. Send a written notice that describes the problem and what you want; we will do the same. We will each have thirty (30) days to discuss and try to work it out. If we cannot resolve it in that window, either party may bring a claim as described below. These Terms are governed by the laws of the State of California, without regard to its conflict of laws rules. If a lawsuit is filed, the exclusive venue and jurisdiction will be the state or federal courts located in San Luis Obispo County, California, and both parties consent to those courts for all proceedings that are not required to be handled elsewhere by this section. Either party may still seek temporary or emergency injunctive relief in any court with jurisdiction to protect its confidential information or intellectual property while a dispute is being resolved. You and Backup Failed agree to bring disputes only in our individual capacities and not as a class action or other representative proceeding. Class actions and private attorney general actions are not permitted. A jury trial is waived to the fullest extent allowed by law; any permitted court proceeding will be heard by a judge. Nothing in this section prevents either party from using small claims court if the claim qualifies, or from working with regulators or law enforcement when required by law. Any claim must be brought within one (1) year after it first could be filed; after that, it is permanently barred. This limitations period does not apply to claims for nonpayment of amounts owed or to claims for misuse of a party’s confidential information or intellectual property. If a part of this section is found unenforceable, the remainder stays in effect to the extent permitted by law. This section survives termination of the services.

15. Confidentiality

Each party may receive non-public information from the other in the course of evaluating, setting up, or delivering services. “Confidential Information” means any information disclosed by one party to the other, whether oral, written, visual, or electronic, that a reasonable person would understand to be confidential under the circumstances. For clarity, your Confidential Information includes things like credentials, tenant details, configurations, network diagrams, security findings and remediation plans, ticket histories, and business or client data you share with us. Our Confidential Information includes our pricing not publicly posted, proposals, playbooks, scripts, tooling, documentation, internal processes, and non-public business information. Confidential Information does not include information that becomes public through no fault of the receiving party, was already known to the receiving party without restriction, is independently developed without reference to the disclosing party’s information, or is rightfully received from a third party without confidentiality obligations. If a court, regulator, or other authority compels disclosure, the receiving party may disclose only what is legally required after giving prompt notice to the disclosing party (if legally permitted) so the disclosing party can seek a protective order or other remedy. The receiving party will use the disclosing party’s Confidential Information only as needed to perform or receive the services and will not disclose it to anyone except its employees, contractors, and professional advisors who have a legitimate need to know and who are bound by written obligations no less protective than those in this Section. Each party will safeguard the other’s Confidential Information with at least the level of care it uses to protect its own information of a similar nature, and in any case no less than a commercially reasonable standard for an MSP. We implement reasonable administrative, technical, and physical safeguards designed to protect client Confidential Information within our control and to limit access under the principle of least privilege. No system is perfectly secure, but we take security seriously and will not share client credentials or sensitive configuration details with unauthorized persons. If either party discovers unauthorized access, use, or disclosure of the other party’s Confidential Information within its control, it will notify the other party without undue delay after confirming the incident, share the information it reasonably has about what happened, and cooperate in good faith to mitigate harm. Incident notices are not an admission of fault and do not expand liability beyond what these Terms provide. Upon request or upon termination of the services, the receiving party will, at the disclosing party’s choice, return or securely delete the disclosing party’s Confidential Information that it actually possesses and controls. The receiving party may retain copies that are required by law or bona fide record-keeping practices (including routine backups created in the ordinary course of business), provided those retained copies remain subject to this Section and are not restored to active use except as required by law. We may retain de-identified operational metrics. Nothing in this Section grants ownership rights in the other party’s information. Feedback, suggestions, or improvement ideas you voluntarily provide about our services are not treated as your Confidential Information, and we may use them without obligation, provided we do not disclose your identity or your Confidential Information in doing so. The obligations in this Section last for five (5) years from the date of disclosure, except that trade secrets and credentials remain protected for as long as they qualify as such. These confidentiality obligations are in addition to any separate non-disclosure agreement; if a separate NDA is in place, the more protective terms control for the subject matter they cover. If you require a data processing agreement or business associate agreement for regulated data, we can execute a separate agreement, and that agreement will govern to the extent of any conflict for that subject matter.

16. Support and Maintenance

We provide support during our posted business hours, and we handle urgent issues outside those hours on a best-effort basis. We may schedule maintenance windows for updates, security patches, or infrastructure work; when practical, we will give advance notice and perform maintenance during low-impact times. Emergency maintenance may occur without prior notice if required to protect security or restore service. We work issues in priority order based on impact and urgency. Because many incidents involve third-party platforms, resolution times can vary; we will keep you informed and continue pushing vendors until the matter is resolved or a reasonable workaround is in place. Unless a separate service-level agreement is executed in writing, we do not guarantee specific response or resolution times.

17. Changes to Services

Technology changes. We may enhance, modify, or discontinue features to improve performance, security, or usability, or to respond to vendor changes. If a change materially reduces functionality you actively use, we will provide reasonable notice and, where feasible, a path to an equivalent alternative. If a third-party provider discontinues or restricts a dependency, we may need to alter or remove the affected portion of the services; in that event we will make best efforts to minimize disruption and to help you transition. Your continued use after changes take effect constitutes acceptance of the changed services.

18. Assignment and Subcontracting

You may not assign these Terms or transfer your rights or obligations without our prior written consent, and any attempt to do so without consent is void. We may assign these Terms in connection with a merger, acquisition, corporate reorganization, or sale of substantially all assets, or to an affiliate that can perform our obligations, provided your rights are not materially reduced. We may use qualified subcontractors and service providers to deliver portions of the services. When we do, they are bound by confidentiality and security obligations no less protective than those in these Terms, and we remain responsible for their performance.

19. Compliance with Laws; Export and Sanctions

Each party will comply with all laws that apply to its performance or use of the services. You represent that you are not located in, organized under the laws of, or ordinarily resident in a country or region subject to comprehensive sanctions, and that you, your owners, and your authorized users are not on any U.S. or EU denied-party list. You will not use the services for, or permit access by, any prohibited person or in any prohibited jurisdiction. Cross-border use of communications services, including SMS, may be restricted by local carriers or regulations; you are responsible for ensuring your use is lawful where you operate.

20. Independent Contractor; No Agency

We provide services as an independent contractor. These Terms do not create a partnership, joint venture, fiduciary duty, or employment relationship. Neither party has authority to bind the other or to incur obligations on the other’s behalf except as expressly stated in a written agreement.

21. Waiver; Severability

A party’s failure to enforce a provision is not a waiver of its right to do so later. If any provision of these Terms is held unenforceable, the remaining provisions will remain in full force and will be interpreted to effect the original intent as closely as possible. If a narrower construction would make a provision enforceable, that construction will be adopted.

22. Entire Agreement; Order of Precedence

These Terms, together with any signed service orders or statements of work, our Privacy Policy, and any separate data processing, business associate, or partner addenda that we execute with you, form the entire agreement regarding the subject matter and supersede prior or contemporaneous understandings. If there is a direct conflict, a signed service order or statement of work controls over these Terms for the specific services it covers; these Terms control over the Privacy Policy on contractual matters; and any required regulatory addendum (such as a DPA or BAA) controls for the regulated subject matter it addresses.

23. Notices; Electronic Communications

We may send you legal or account notices by email to the addresses you provide, by posting within an authenticated client portal, or by posting on our website for general updates. You agree that electronic notices satisfy any legal requirement that communications be in writing. You are responsible for keeping your contact information current and for monitoring the channels you designate. Formal legal notices to Backup Failed must be sent to the email and mailing address we publish on our website or specify in a service order. Notices are deemed received when delivered, except that portal or website postings are deemed received when made available.

24. Contact

If you have questions about these Terms or your relationship with us, contact:

Backup Failed Foundation
Email: support@backupfailed.com
Phone: 805-900-4505
Website: https://backupfailed.com