Software License and Service Subscription Agreement
CAREFULLY READ THE FOLLOWING LEGAL AGREEMENT BEFORE
DOWNLOADING THIS SOFTWARE. BY DOWNLOADING THIS
SOFTWARE YOU ARE AGREEING TO BE BOUND BY THE TERMS
OF THIS SOFTWARE LICENSE AND SUBSCRIPTION SERVICE
AGREEMENT (THE "AGREEMENT"). IF YOU DO NOT AGREE TO
THE TERMS OF THIS AGREEMENT, DO NOT DOWNLOAD THIS
SOFTWARE FROM BACKUPNATION.COM.
IT IS RECOMMENDED THAT YOU PERFORM OCCASIONAL TEST
RESTORES AND FAMILIARIZE YOURSELF WITH THE OPERATION
OF THE SOFTWARE BEFORE AN EMERGENCY SITUATION
ARISES.
LICENSE: The software covered
by this Agreement is the software program and
documentation accompanying this License, whether
on disk, in read only memory, on any other media
or in any other form, and if you have downloaded
the software, the licensed software includes all
files, images contained in or generated by the
software and accompanying data (collectively,
the "Software"). BACKUPNATION.COM grants to you
a non-exclusive limited license to install and
use the Software on as many machines as
necessary, for the sole purpose of connectivity
to the BACKUPNATION.COM backup and restore
Service (the “Service”).
RESTRICTIONS. You shall not
transfer, distribute, rent, lease, sublicense,
assign, copy, modify, reverse compile,
disassemble, or otherwise reverse engineer or
attempt to reconstruct the Software, in whole or
in part. You may only use the Software in
connection with BACKUPNATION.COM's Service, and
not with any other backup or related service.
OWNERSHIP. This Agreement gives
you limited rights to use the Software. You do
not own the Software. All rights, title and
interest in and to the Software not specifically
granted in this license belong to
BACKUPNATION.COM, including, without limitation,
US and international copyright and trade secret
rights.
TERM AND TERMINATION. This
Agreement is effective until terminated. This
Agreement will automatically terminate, without
notice to you, if you fail to comply with any
term of this Agreement, including the
non-payment of Service Fees. You may terminate
this Agreement at any time by discontinuing
service with BACKUPNATION.COM. To discontinue
service, you must call BACKUPNATION.COM and
request cancellation of your DataSave-Online
Backup Service.
YOU AGREE THAT UPON ACCOUNT TERMINATION, YOU ARE
AUTHORIZING BACKUPNATION.COM TO DELETE ALL
ASSOCIATED BACKUP FILES AND DATA FROM OUR
SERVERS.
USE OF SERVICE. Use of this
Service consists of the right of a Subscriber of
the Service (“Subscriber”) to electronically
transmit and store computer data using either a
private data communications network, or the
Internet into a location maintained by
BACKUPNATION.COM and to retrieve said data as
required. The Service is made available by
BACKUPNATION.COM to Subscriber during the period
Subscriber maintains a paid subscription to the
Service. Subscriber must maintain a current
license of BACKUPNATION.COM’s Software for
Services where software is required to provision
access.
Subscriber should maintain a primary electronic
file of all materials stored in the Service.
Subscriber should not utilize the service as a
substitute for primary electronic file
maintenance.
BACKUPNATION.COM may make copies of all files
stored as part of the backup and recovery of
servers utilized in connection with some of the
Services. BACKUPNATION.COM is not obligated to
archive such copies and will utilize them only
for backup purposes. They will not be accessible
to the Subscriber.
SERVICE FEES. Except for fees
payable to an authorized DataSave-Online Backup
Reseller or Manufacturer, Subscriber shall pay
in advance any registration or service fees and
other charges incurred by Subscriber or
Subscriber’s designated users at the rates in
effect for the billing period in which those
charges are incurred. For situations where
credit card payment is utilized, Subscriber
shall maintain a current authorization for
BACKUPNATION.COM to debit Subscriber’s credit
card account for such amounts. In addition,
Subscriber shall provide BACKUPNATION.COM a
current street address and Internet e-mail
address for all communications and shall notify
BACKUPNATION.COM of any change of address.
Subscriber shall pay all applicable taxes
related to use of the Service by Subscriber or
Subscriber’s designated users. For situations
where the Subscriber’s credit card issuing
financial institution has been notified of a
payment dispute, said Subscriber agrees that
proof of Service usage by Subscriber constitutes
Subscriber authorization to submit payment
request to Credit Card issuing financial
institution. BACKUPNATION.COM may, in addition,
at its sole discretion and without notice to the
Subscriber, (a) suspend its performance under
this Agreement and deny Subscriber’s and
Subscriber’s designated users’ access to and use
of the Service until Subscriber is back in good
standing, or (b) terminate this Agreement and
Subscriber’s and Subscriber’s designated users’
access to and the use of the Service. Further,
BACKUPNATION.COM may cancel the Service to
Subscriber without cause upon thirty (30) days
prior written notice. Subscriber must provide
BACKUPNATION.COM with written notice of
Subscriber’s intent to terminate use of the
Service. A cancellation notice must be submitted
by phone. At the time of cancellation, the
Subscriber’s access to any of Subscriber’s data
stored by the Service may be permanently
terminated. BACKUPNATION.COM will not provide a
refund for any unused portion of the Services
paid in advance by Subscriber.
While BACKUPNATION.COM reserves the right to
modify and change Service fees at any time,
current Service fees, and any changes to the
fees will be posted on BACKUPNATION.COM's
website at: http://www.backupnation.com.
SUBSCRIBER AGREES THAT BACKUPNATION.COM WILL
BILL SUBSCRIBER FOR THE FEE APPLICABLE TO THE
AMOUNT OF STORAGE SPACE USED ON
BACKUPNATION.COM'S SERVERS FOR SUBSCRIBER’S DATA
BACKUP. SHOULD SUBSCRIBER’S DATA BACKUP
REQUIREMENTS INCREASE SUCH THAT THE RESULTING
SIZE REQUIREMENT MOVES THE SUBSCRIBER INTO A
DIFFERENT PRICE LEVEL AS PER BACKUPNATION.COM'S
PRICING MODEL, SUBSCRIBER AGREES TO BE BILLED AT
THE NEW, APPLICABLE RATE, PRORATED FOR EACH
MONTH SUBSCRIBER’S STORAGE REQUIREMENTS EXCEED
SUBSCRIBER’S PRE-AUTHORIZED STORAGE LIMIT.
PASSWORDS. No bailment or
similar obligation is created between Subscriber
(and/or Subscriber’s designated users) and
BACKUPNATION.COM with respect to Subscriber’s
stored data. Subscriber is solely responsible
for maintaining the confidentiality of
Passwords, including restricting the use of the
Passwords by Subscriber’s designated users.
Subscriber shall be responsible for all use of
the Service accessed through Subscriber’s
Password.
BACKUPNATION.COM SHALL NOT HAVE ANY
RESPONSIBILITY OR OBLIGATION TO SUBSCRIBER,
SUBSCRIBER’S DESIGNATED USERS OR OTHER USERS OF
THE SERVICE TO MONITOR, SUPERVISE OR OVERSEE THE
CONTENTS OF FILES STORED ON THE SERVICE.
BACKUPNATION.COM IS NOT RESPONSIBLE FOR
PROVIDING SUBSCRIBER WITH PASSWORDS IN THE EVENT
OF A FORGOTTEN PASSWORD. WITHOUT THE CORRECT
PASSWORD, SUBSCRIBER’S DATA WILL REMAIN
ENCRYPTED AND INACCESSIBLE.
COMMUNICATIONS CIRCUITS. Subscriber is responsible for and must provide
all telephone or other communication equipment
and services necessary to access the Service.
All data files are transmitted over
communication company circuits, which are wholly
beyond the control and jurisdiction of
BACKUPNATION.COM and are maintained by the
communications company. If these communication
circuits are not functional for any reason, the
data files may not accurately or completely
reach BACKUPNATION.COM's facility or equipment.
BACKUPNATION.COM cannot be responsible for the
continued operation or functioning of these
communication circuits nor the reliability of
the data files being received over them.
UNLAWFUL MATERIALS. Subscriber
shall not use the Service for storage,
possession or transmission of any information,
the possession, creation or transmission of
which violates any state, local or federal law,
including without limitation, stolen materials,
obscene materials or child pornography.
SUBSCRIBER’S BACKUP FILES MAINTAINED BY
BACKUPNATION.COM ARE SUBJECT TO EXAMINATION BY
LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT
SUBSCRIBER’S CONSENT UPON PRESENTATION TO
SUBSCRIBER OR BACKUPNATION.COM OF A SEARCH
WARRANT OR SUBPOENA.
EXPORT CONTROLS. Subscriber
acknowledges that the Software contains
encryption algorithms and may be subject to
restrictions and controls imposed under the
export control laws and regulations of the
jurisdiction in which the subscriber is using
the Software and may not be exported, acquired,
shipped, transferred or re-exported, directly or
indirectly, to (i) any country or region
prohibited under such laws and regulations or
(ii) any end user who has been prohibited from
participating in the export transaction under
such laws or regulations. In particular, the
Software is subject to regulations respecting
export permits and prohibitions on export under
the laws of the United States and Canada.
INDEMNIFICATION. Subscriber
agrees to indemnify BACKUPNATION.COM against
liability for use of Subscriber’s account which
liability is a direct result of Subscriber’s
misuse or neglect use of its account(s).
NO OTHER WARRANTIES. SUBSCRIBER
EXPRESSLY AGREES THAT USE OF THE SOFTWARE AND
SERVICE IS AT SUBSCRIBER’S SOLE RISK. NEITHER
BACKUPNATION.COM NOR ANY OF ITS LICENSORS,
EMPLOYEES, OR AGENTS WARRANT THAT THE SERVICE
WILL BE UNINTERRUPTED OR ERROR FREE; NOR
BACKUPNATION.COM OR ANY OF ITS LICENSORS,
EMPLOYEES OR AGENTS MAKE ANY WARRANTY AS TO THE
RESULTS TO BE OBTAINED FROM USE OF THE SERVICE.
EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE,
THE SOFTWARE AND SERVICE IS PROVIDED ON AN "AS
IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED
TO WARRANTIES OF TITLE OR IMPLIED WARRANTIES OF
MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS FOR
A PARTICULAR PURPOSE, OTHER THAN THOSE
WARRANTIES WHICH ARE IMPLIED BY AND INCAPABLE OF
EXCLUSION, RESTRICTION, OR MODIFICATION UNDER
THE LAWS APPLICABLE TO THIS AGREEMENT.
LIMITATION OF LIABILITY. IN NO
EVENT WILL BACKUPNATION.COM OR ITS RESELLERS,
DISTRIBUTORS, AGENTS OR LICENSORS BE LIABLE FOR
ANY CLAIM, WHETHER IN CONTRACT, TORT OR ANY
OTHER THEORY OF LIABILITY, EXCEED THE AMOUNTS
PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE FOR
THE TWELVE MONTH PERIOD (IF PAYING ANNUALLY) OR
THE THREE MONTH PERIOD (IF PAYING QUARTERLY) OR
THE ONE MONTH PERIOD (IF PAYING MONTHLY)
PRECEDING THE EVENT FORMING THE BASIS OF THE
CLAIM. IN NO EVENT WILL BACKUPNATION.COM NOR
ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR
MAINTAINING THE SERVICE BE LIABLE FOR ANY
DAMAGES INCLUDING, WITHOUT LIMITATION, ANY
DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY
OR CONSEQUENTIAL DAMAGES, LOSSES RELATED TO
BUSINESS INTERRUPTION, LOSS OF BUSINESS
INFORMATION OR LOSS OF PROFITS ARISING OUT OF
SUBSCRIBER’S USE OF OR INABILITY TO USE THE
SOFTWARE OR SERVICE, OR OUT OF ANY BREACH OF
WARRANTY, EVEN IF BACKUPNATION.COM HAS BEEN
ADVISED OF THE POSSIBILITY OF SUCH DAMAGES, OR
FOR ANY CLAIM BY ANY THIRD PARTY.
INSURANCE. Subscriber does not
desire this Agreement to provide liability for
loss or damage due directly or indirectly to
occurrences, or consequences there from, which
the service is designed to deter or avert. If
subscriber desires additional liability
coverage, it shall be the subscriber’s sole
responsibility to secure it from an insurance
carrier or other agency of subscriber’s choice,
at subscriber’s own expense. Subscriber shall
bring no suit against BACKUPNATION.COM as a
result of any loss arising from this Agreement.
ASSIGNMENT. BACKUPNATION.COM
shall have the right to assign this Agreement to
any person, firm or corporation, without prior
consent.
EXCLUSIVE REMEDY. In the event
a court of competent jurisdiction determines
that the "Insurance," "Limitation of Liability,"
and/or "No Other Warranties" section(s) of this
Agreement are invalid and BACKUPNATION.COM
should be found liable for loss or damage due to
failure of the services provided under this
Agreement, BACKUPNATION.COM’s liability shall be
limited to the Subscriber’s fees paid, if any,
for the Service for the 12 month period (if
paying annually) or the 3 month period (if
paying quarterly) or the 1 month period (if
paying monthly) preceding the event forming the
basis of the claim, as agreed upon liquidated
damages and not as a penalty. Because of the
nature of the services rendered and the system
as a whole, it is impractical and extremely
difficult to determine the actual damages, if
any, which may result from failure on the part
of BACKUPNATION.COM to perform its
responsibilities under this Agreement. Such
liquidated damage is the exclusive remedy for
any failure of the services, and the provisions
of this paragraph shall apply if loss or damage,
irrespective of cause or origin, results
directly or indirectly to a person or property
from the performance or nonperformance of any
obligation of BACKUPNATION.COM from negligence,
active or otherwise, of BACKUPNATION.COM, its
agents or employees. It is intended and
expressly agreed that the purpose of the
preceding provisions are to set an upper limit
to the amount recoverable by subscriber and to
fix liability of BACKUPNATION.COM at a specific
sum not to exceed the fees paid to
BACKUPNATION.COM for the prior twelve, three or
one month(s) of service, whichever is
applicable.
ENTIRE AGREEMENT. This
Agreement and any additional Operating Rules
published by BACKUPNATION.COM from time to time
constitute the entire and only agreement between
BACKUPNATION.COM and Subscriber (including
Subscriber’s designated users) with respect to
the Software and Service. This Agreement
supersedes all other communications and
agreements with regard to the subject matter
hereof. Upon notice published over the Service,
BACKUPNATION.COM may modify this Agreement, the
Operating Rules or prices, and may discontinue
or revise any or all other aspects of the
Service at its sole discretion and without
advance notice. Unless otherwise agreed,
Subscriber’s right to use the Service or to
designate users is not transferable and is
subject to any limits established by
BACKUPNATION.COM.
CONTROLLING LAW AND
SEVERABILITY. This Agreement is, and
shall be governed by and construed in accordance
with the law of the State of New York applicable
to agreements made and performed in New York.
The parties hereto agree that any dispute in any
manner arising out of this Agreement shall be
submitted for resolution by mandatory
arbitration pursuant to the provisions of New
York. In the event the parties cannot agree upon
a mutually-acceptable arbitrator, such
arbitrator shall be appointed by the New York
District Court, New York, New York, in
accordance with said code provisions. The
parties further agree that the laws of the State
of New York shall apply to all disputes arising
hereunder and that the exclusive and proper
forum for the arbitration of disputes arising
hereunder shall be in New York, New York. The
parties further agree that the successful party
in any such arbitration shall be entitled to the
recovery of its reasonable attorney's fees and
costs, to be awarded by the arbitrator.
Notwithstanding any acknowledgement of a
Subscriber purchase order by BACKUPNATION.COM,
any provision or condition in any purchase
order, voucher, letter or other memorandum of
the Subscriber which is in any way inconsistent
with, or adds to the provisions of this
agreement is null and void. Neither the course
of conduct between parties nor trade practice
shall act to modify the provisions of this
Agreement. If any provision of this Agreement is
determined to be invalid, all other provisions
shall remain in full force and effect. The
provisions of paragraph 12 and 18 and all
obligations of and restrictions on Subscriber
and its designated users shall survive any
termination of this Agreement.