ACCEPTANCE OF AGREEMENT
BackUp Solutions, Inc. (also referred to as “we”, “us” or “our”) is willing to provide the services for which you register (the “Services”) and to license to you certain software programs (in object code form) and user documentation that are required for your use of the Services (collectively, the “Software”) only upon the condition that you accept all of the terms of this Agreement. PLEASE READ CAREFULLY THE TERMS AND CONDITIONS OF THIS AGREEMENT BEFORE INSTALLING ANY SOFTWARE OR ACCESSING ANY OF THE SERVICES. BY DOWNLOADING, INSTALLING, COPYING OR OTHERWISE USING THE SOFTWARE OR ACCESSING THE SERVICES, YOU AGREE TO BE BOUND BY THE TERMS AND CONDITIONS OF THIS AGREEMENT. IN THE EVENT YOU DO NOT AGREE WITH ANY OF THESE TERMS OR CONDITIONS, DO NOT INSTALL THE SOFTWARE OR ACCESS THE SERVICES. YOU SHOULD PRINT A COPY OF THIS AGREEMENT FOR YOUR RECORDS.
We reserve the right, at any time and from time to time, to modify or discontinue, temporarily or permanently, the Services, or any part thereof, with or without notice and in our sole discretion. You agree that we will not be liable to you for any modification, general suspension, discontinuance or removal of any Services except to the extent that we discontinue any Service prior to the end of your then-current subscription we will return to you any prepaid, but unused portion of the fees you paid for the then-current subscription to the applicable Service. We have the right, in our sole discretion, to refuse or restrict access to any or all of the Services by anyone at any time.
The Software includes (i) “Server Software” that includes the software necessary to provide the Services to you and (ii) “Client Software” that allows your personal computer, tablet or mobile device to access the Server Software and use the Services provided by the Server Software. Under the terms of this Agreement, BackUp Solutions, Inc. grants to you the non-exclusive, non-transferable, limited license to: (a) download and use one (1) copy of the Client Software on any personal computer that you own, as long as it is used in conjunction with the Services and after registering each such personal computer with us in connection with your use of such Services; (b) copy the Client Software onto any computer for back-up purposes in support of your use of the Client Software and Services, after successfully registering for said Services; and (c) transfer the Client Software and license to another party as long as you and such other party comply with the terms set forth in this Agreement. Any other use of the Software is strictly prohibited. You may not use, copy, modify, translate, adapt, disclose or transfer the Software or any copy, in whole or in part, except as expressly provided in this Agreement. You agree not to make any attempt to decompile, disassemble or reverse engineer the Software or otherwise discover or derive the source code or underlying processes, ideas, structure, organization or algorithms of the Software.
To transfer the Client Software to another party, you must (i) ensure that the other party agrees in writing to comply with the terms and conditions of this Agreement and send evidence of such agreement to, (ii) transfer the Client Software and your account for the Services associated to such other party and (iii) delete permanently the Client Software from all of your computers.
All intellectual property rights in the Software and user documentation are owned by BackUp Solutions, Inc. and as applicable its suppliers and are protected by United States copyright laws, other applicable laws and international treaty provisions. BackUp Solutions, Inc. and its suppliers retain all rights not expressly granted pursuant to this Agreement.
Unless terminated earlier in accordance with the terms of this Agreement, the term of this Agreement is effective for the period of time for which you have prepaid BackUp Solutions, Inc. for a subscription to the Services and may continue until such time as you cancel your subscription to the Services. You may terminate this Agreement at any time by destroying the Software together with all copies in any form and by canceling the associated Services, with BackUp Solutions, Inc via successful submission of our online cancellation request form (http://www.backupsolutions.com/cancel.php) at least 3 business days prior to your renewal date; provided, however, you will not be entitled to any refund of any prepaid fees and you will be obligated to pay any outstanding amounts due to us. This Agreement will terminate if you fail to pay the fee set forth by BackUp Solutions, Inc. for the Services associated with the Software, within 30 calendar days of the due date. It will also terminate upon conditions set forth elsewhere in this Agreement or if you fail to comply with any term or condition of this Agreement. You agree upon such termination to destroy the Client Software together with all copies, in any form. ALL OF YOUR DATA WILL BE DELETED FROM BACKUP SOLUTIONS, INC.’S SERVERS 30 DAYS AFTER THE TERMINATION OF THIS AGREEMENT. If your account is suspended or terminated, we have no obligation to provide you with copies of your data.
DISCLAIMER; LIMITATION ON LIABILITY
THE SOFTWARE AND THE SERVICES ARE PROVIDED “AS IS” AND “AS AVAILABLE” WITHOUT WARRANTIES OF ANY KIND, WHETHER EXPRESS, IMPLIED, STATUTORY OR OTHERWISE. TO THE FULLEST EXTENT PERMISSIBLE PURSUANT TO APPLICABLE LAW, WE DISCLAIM ALL WARRANTIES, EXPRESS, IMPLIED, STATUTORY OR OTHERWISE, INCLUDING BUT NOT LIMITED TO THE IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT, ACCURACY OR COMPLETENESS OF INFORMATIONAL CONTENT AND FITNESS FOR A PARTICULAR PURPOSE.
UNDER NO CIRCUMSTANCES WILL BACKUP SOLUTIONS, INC. BE LIABLE FOR DATA WHICH WAS NEVER SENT TO THE OPERATIONS CENTER BY THE SOFTWARE. YOU ARE ADVISED TO CHECK THE LOG FILE TO ENSURE THE DESIRED FILES HAVE BEEN TRANSMITTED.
BACKUP SOLUTIONS, INC. DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN THE SOFTWARE AND/OR SERVICES WILL MEET YOUR REQUIREMENTS, THAT THE OPERATION OF THE SOFTWARE AND/OR THE SERVICES WILL BE AVAILABLE, UNINTERRUPTED OR ERROR-FREE, THAT DEFECTS WILL BE CORRECTED, OR THAT THE SOFTWARE OR THE SERVERS ARE FREE OF VIRUSES OR OTHER HARMFUL COMPONENTS. YOU ASSUME RESPONSIBILITY FOR THE SELECTION OF THE SOFTWARE AND SERVICES TO ACHIEVE YOUR INTENDED RESULTS; AND FOR THE INSTALLATION, USE AND RESULTS OBTAINED. SOME JURISDICTIONS DO NOT ALLOW THE EXCLUSION OF IMPLIED WARRANTIES, SO THE ABOVE EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT SUCH EXCLUSION IS NOT ALLOWED BY APPLICABLE LAW. YOU MAY HAVE OTHER RIGHTS THAT VARY BY JURISDICTION.
IN NO EVENT WILL BACKUP SOLUTIONS, INC. BE LIABLE TO YOU OR ANY OTHER PERSON FOR ANY DAMAGES, INCLUDING ANY INCIDENTAL, SPECIAL, EXEMPLARY, OR CONSEQUENTIAL DAMAGES, EXPENSES, LOST PROFITS, LOST SAVINGS, LOST REVENUES OR OTHER DAMAGES ARISING OUT OF USE OF OR INABILITY TO USE ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS AGREEMENT, EVEN IF WE HAVE BEEN ADVISED OF THE POSSIBILITY OF SUCH POTENTIAL LOSS OR DAMAGE. SOME JURISDICTIONS DO NOT ALLOW THE LIMITATION OR EXCLUSION OF LIABILITY FOR SPECIAL, CONSEQUENTIAL OR INCIDENTAL DAMAGES, SO THE ABOVE LIMITATION OR EXCLUSION MAY NOT APPLY TO YOU TO THE EXTENT SUCH EXCLUSION IS NOT ALLOWED BY APPLICABLE LAW.
OUR TOTAL LIABILITY UNDER THIS AGREEMENT SHALL BE LIMITED TO DIRECT DAMAGES ACTUALLY INCURRED BY YOU AND SHALL NOT EXCEED THE FEES ACTUALLY PAID BY YOU AND RECEIVED BY US FOR THE MONTH IN WHICH YOUR DAMAGES FIRST ACCRUED. THIS LIMITATION IS INDEPENDENT OF ANY OTHER LIMITATION SET FORTH IN THIS AGREEMENT.
YOUR REPRESENTATIONS, WARRANTIES AND COVENANTS
You agree to: (i) provide true, accurate, current and complete information about you as prompted by the online registration form for the Services (the “Registration Data”) and (ii) maintain and promptly update the Registration Data to keep it true, accurate, current and complete.
You represent you have legal capacity to enter into this Agreement (i.e., that you are of sufficient age and mental capacity and are otherwise entitled to be legally bound in contract).
You agree to be responsible solely for the use of your account and your user id and password.
During the term of this Agreement you will not use the Software and/or Services for information, data or material that (a) infringes on the intellectual property rights of any third party or any rights of publicity or privacy; (b) violates any law, statute, ordinance or regulation (including but not limited to the laws and regulations governing export control, unfair competition, anti-discrimination or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; (e) contains any virus or other programming routine intended to damage any system or data; or (f) is provided in breach of any prior contractual commitment to any third party.
Subscriptions to the Services are either on an annual basis, quarterly or on a month to month basis based on the plan you select. Subscriptions are automatically renewed unless cancelled by you prior to the end of your subscription period and each renewal will be considered a new, separate subscription period. Subscriptions are pre-paid and nonrefundable for the subscription period. We reserve the right to change our prices for subscription plans at any time and such new pricing shall become effective in the subsequent subscription period.
We accept Visa, MasterCard, Discover and American Express credit cards for payment. You must provide all relevant information as requested in order for us to process payment for your chosen subscription. By submitting a credit card number as the form of payment, you represent and warrant that your use of the particular card is authorized and that all information that you submit is true and accurate (including, without limitation, credit card number and expiration date). In doing so, you also authorize us to charge to the payment card you tendered (“Your Card”) all amounts payable by you to us based on the subscription plan you selected (including all renewals thereof), including, but not limited to, all fees and any applicable taxes we are required to collect. Remember that all subscriptions paid by Your Card are automatically renewed unless cancelled by you prior to the end of your subscription period. To ensure the continued safety of your data, we reserve the right to update the expiration date on your card. All fees are pre-paid and non-refundable and may be charged up to five (5) days in advance of the first day of the subscription period for which the fees relate.
If you pay by credit card, you have authorized us to automatically renew your subscription and charge Your Card for the same subscription period last purchased by you each time your subscription is due to expire unless you instruct us otherwise in accordance with these terms. We will continue to renew your subscription plan unless you contact us through billing (at) backupsolutions.com that you wish to terminate or cancel your subscription or change your subscription period prior to expiration of your then-current subscription period. You agree to update your account registration and Your Card information immediately with any change in Your Card information including, but not limited to, any change in expiration date. If we are unable to process Your Card at any time, your account may be immediately suspended or terminated and you will remain responsible for all amounts payable by you to us. Your Card issuer agreement governs use of Your Card in connection with the Software and Services and you must refer to that agreement with respect to your rights and liabilities as a cardholder. If we do not receive payment from Your Card issuer or its agent, you agree to pay us all amounts due upon demand by us. We will send all your notices to the e-mail address you give us when you register or update your registration information. We reserve the right to not renew your account at any time for any reason.
Our acceptance of any partial payment by you does not mean that we waive our rights to collect the full balance owed to us. If we are required to use a collection agency or attorney to collect money owed by you or to assert any right that we may have against you, you agree to pay the reasonable costs of collection or other action. These costs might include, but are not limited to, the costs of a collection agency, reasonable attorneys’ fees and arbitration and court costs.
FILES DESELECTED BY DEFAULT.
A number of files are excluded from backup by default. These include files with the following extensions: .avi, .bak, .bkf, .bsc, .chk, .chw, .dbg, .exp, ex~, .ftg, .fts, .gid, .hfv, .idb, .ilk, .moz, .mp3, .mpeg, .mpg, .obj, .ost, .pch, .pqi, .qic, .swp, .tmp, .wav, pagefile.sys. For a complete list of excluded file types, in the program click on Options, Advanced Rules, Folders, and look in the bottom right box. It is your responsibility to review the default backup selection and make changes as needed based on your specific computer environment and programs.
GOVERNMENT END-USER NOTICE
The Software is a “Commercial Item,” as that term is defined at 48 C.F.R § 2.101, consisting of “Commercial Computer Software” and “Commercial Computer Software Documentation,” as such terms are used in 48 C.F.R. § 12.212 and 48 C.F.R. § 227.7202, as applicable. Consistent with 48 C.F.R. §§ 12.212, 227.7202-1 through 227.7202-4, the Commercial Computer Software and Commercial Computer Software Documentation are being licensed to U.S. Government end-users (a) only as Commercial Items and (b) with only those rights as are granted to all other end-users pursuant to the terms and conditions herein.
Governing Law; Exclusive Jurisdiction. This Agreement will be governed by the laws of the State of California without regard to the conflicts of laws provisions thereof. YOU AND BACKUP SOLUTIONS, INC. AGREE AND HEREBY SUBMIT TO THE EXCLUSIVE JURISDICTION AND VENUE OF THE APPROPRIATE STATE AND FEDERAL COURTS LOCATED IN ORANGE, CALIFORNIA, USA WITH RESPECT TO SUCH MATTERS.
Time Limitation for Bringing Claims. YOU AGREE THAT REGARDLESS OF ANY STATUTE OR LAW TO THE CONTRARY, ANY CLAIM OR CAUSE OF ACTION ARISING OUT OF OR RELATED TO USE OF THE SOFTWARE AND/OR THE SERVICES, OR ANY PART THEREOF, OR THIS AGREEMENT MUST BE FILED WITHIN ONE (1) YEAR AFTER SUCH CLAIM OR CAUSE OF ACTION AROSE OR BE FOREVER BARRED.
Severability. If any term, condition or provision in this Agreement is found by a court of competent jurisdiction to be invalid, unlawful or unenforceable to any extent, then it is the intent of the parties that such court apply a rule of reasonableness and modify the term, condition or provision in question so it will remain in effect to the greatest extent permitted by law. In the event a court finds such procedure to be inappropriate, then such invalid term, condition or provision will be severed from the remaining terms, conditions and provisions, which will continue to be valid and enforceable to the fullest extent permitted by law.
Waiver. The failure of us to exercise or enforce any right or provision of this Agreement shall not constitute a waiver of such right or provision.
Assignment. We may assign our rights and obligations under this Agreement, without notice, to any party or its affiliate acquiring all or substantially all of the assets or stock by merger or otherwise of us. This Agreement may not be assigned by you without our prior written consent except as expressly permitted in this Agreement.
Amendments; Entire Agreement. Except as modified by a written agreement signed by BackUp Solutions, Inc. and you, this Agreement is the complete and exclusive statement of the Agreement between us and supersedes any prior agreements (including your purchase order) between us relating to the subject matter hereof. No oral statements, promises or agreements will alter the terms of this Agreement.
BY DOWNLOADING THE SOFTWARE, I ACKNOWLEDGE THAT I HAVE READ THIS AGREEMENT, UNDERSTAND IT, AND AGREE TO BE BOUND BY ITS TERMS AND CONDITIONS.