-
USE OF DataSave-Online Backup Service (the
"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 NesTECH
("PROVIDER") and to retrieve said data should
they be required. The Service is made available
by PROVIDER to Subscriber during the period
Subscriber maintains a paid subscription to the
Service. Subscriber must be a currently licensed
user of PROVIDER's software for Services where
software is required to provision access.
-
These terms and any additional Operating Rules
published by PROVIDER from time to time
constitute the entire and only agreement
(collectively, the "Agreement") between PROVIDER
and Subscriber (including Subscriber's
designated users) with respect to the Service
and supersede all other communications and
agreements with regard to the subject matter
hereof. Upon notice published over the Service,
PROVIDER 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 PROVIDER.
-
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 PROVIDER to debit Subscriber's
credit card account for such amounts. In
addition, Subscriber shall provide PROVIDER a
current street address and Internet e-mail
address for future communications and shall
notify PROVIDER 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. PROVIDER 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,
PROVIDER may cancel the Service to Subscriber
without cause upon thirty (30) days prior
written notice. Subscriber must provide PROVIDER
with written notice of Subscriber's intent to
terminate use of the Service. At the time of
cancellation, the Subscriber’s access to any of
Subscriber’s data stored by the Service may be
permanently terminated. PROVIDER will not
provide a refund for any unused portion of the
Services paid in advance by Subscriber.
-
No bailment or similar obligation is created
between Subscriber (and/or Subscriber's
designated users) and PROVIDER with respect to
Subscriber's stored data. Subscriber is solely
responsible for maintaining the confidentiality
of Passwords, including restricting the use of
the Password by Subscriber's designated users.
Subscriber shall be responsible for all use of
the Service accessed through Subscriber's
Password. PROVIDER 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.
PROVIDER 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.
-
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 PROVIDER ARE SUBJECT TO
EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR
OTHERS WITHOUT SUBSCRIBER'S CONSENT UPON
PRESENTATION TO SUBSCRIBER OR PROVIDER OF A
SEARCH WARRANT OR SUBPOENA.
-
Subscriber agrees to indemnify PROVIDER against
liability for use of Subscriber's account which
liability is a direct result of Subscriber's
misuse or negligent use of its account(s).
-
PROVIDER may make copies of all files stored as
part of the back up and recovery of servers
utilized in connection with some of the
Services. PROVIDER is not obligated to archive
such copies and will utilize them only for
backup purposes. They will not be accessible to
Subscriber.
-
Subscriber is responsible for and must provide
all telephone and other equipment and services
necessary to access the Service. 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.
-
SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE
SERVICE IS AT SUBSCRIBER'S SOLE RISK. NEITHER
PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR
AGENTS WARRANT THAT THE SERVICE WILL BE
UNINTERRUPTED OR ERROR FREE; NOR PROVIDER OR ANY
OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY
WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM
USE OF THE SERVICE. THE SERVICE IS MADE
AVAILABLE ON AN "AS IS" BASIS WITHOUT WARRANTIES
OF ANY KIND, EITHER EXPRESS 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. NEITHER PROVIDER
NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING
OR MAINTAINING THE SERVICE SHALL BE LIABLE FOR
ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL,
EXEMPLARY OR CONSEQUENTIAL DAMAGES ARISING OUT
OF USE OF THE SERVICE OR INABILITY TO USE THE
SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN
NO EVENT WILL PROVIDER'S LIABILITY 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 PRECEDING THE EVENT FORMING
THE BASIS OF THE CLAIM.
-
The provisions of paragraphs 4, 6, 7, and 9 are
for the benefit of Subscriber and its respective
Suppliers, Licensors, Employees, and Agents; and
each shall have the right to assert and enforce
such provisions directly on its own behalf.
-
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.
-
Notwithstanding any acknowledgment of a
Subscriber purchase order by PROVIDER, 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 9 and 12 and all
obligations of and restrictions on Subscriber
and its designated users shall survive any
termination of this Agreement.
E-mail: info@backupnation.com
|
|
|
|