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.

  1. 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”).

  2. 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.

  3. 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.

  4. 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.

  5. 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.

  6. 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.

  7. 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.

  8. 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.

  9. 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.

  10. 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.

  11. 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.

  12. 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).

  13. 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.

  14. 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.

  15. 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.

  16. ASSIGNMENT. BACKUPNATION.COM shall have the right to assign this Agreement to any person, firm or corporation, without prior consent.

  17. 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.

  18. 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.

  19. 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.


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