Customer Software License Agreement

BACKUP SOLUTIONS, INC. Client-Software License Agreement PLEASE READ THIS CLIENT-SOFTWARE LICENSE AGREEMENT (HEREINAFTER REFERRED TO AS THE "AGREEMENT") CAREFULLY. TO COMPLETE YOUR ORDER FOR THE CLIENT SOFTWARE, YOU (HEREAFTER REFERRED TO AS "YOU" &/OR "YOUR") MUST ACCEPT THE TERMS AND CONDITIONS OF THIS AGREEMENT BY ELECTRONICALLY SELECTING "I ACCEPT." THIS AGREEMENT GOVERNS YOUR USE OF BACKUP SOLUTIONS CLIENT-SOFTWARE AND ALL RELATED COMPONENTS AND/OR MODULES. IT IS STRONGLY RECOMMENDED THAT YOU PRINT AND RETAIN A COPY OF THIS AGREEMENT FOR YOUR RECORD. BY SELECTING "I ACCEPT" YOU ARE CERTIFYING THAT YOU HAVE THE PROPER AUTHORITY TO BIND ALL USERS OF THE CLIENT-SOFTWARE WITHIN YOUR ORGANIZATION. IF YOU CHOOSE TO REJECT THIS LICENSE AGREEMENT PRIOR TO YOUR USE OF THE PRODUCT, YOU SHALL NOT BE CHARGED A FEE OR YOU ARE ENTITLED TO A FULL REFUND OF ANY PREPAID LICENSE FEES. TO RECEIVE A REFUND OF PREPAID LICENSE FEES FOR PRODUCT(S) YOU NO LONGER WISH TO LICENSE BASED ON YOUR REJECTION OF THIS LICENSE AGREEMENT, YOU SHOULD CONTACT BACKUP SOLUITONS AT: 307 E. Chapman Avenue, Orange, CA 92866. Definitions "Licensed Product(s)" means the BackUp Solutions Online Backup client-software as developed by Iron Mountain Information Management, Inc., a USA corporation (hereinafter referred to as "Iron Mountain"), in machine-readable form of the object code, associated modules, user documentation, user manuals, installation guides, training materials, Updates, Upgrades, New Releases, products and maintenance, ordered by You and provided by BackUp Solutions while this Agreement is in effect. "Update(s)" and/or "Upgrade(s)" means a subsequent release of a particular Licensed Product, which provides patches, fixes, modifications, error corrections or enhanced functionality and for which BackUp Solutions does not charge a license or other additional fee to You for that Licensed Product. "New Release(s)" means a Licensed Product with greater or different capability than the Licensed Products and for which BackUp Solutions charges a separate and/or additional license fee. License Grant & Restrictions License Grant. The Licensed Product(s) are licensed only and are not sold to You. BackUp Solutions hereby grants, and You accept, a non-exclusive, non-assignable, non-transferable, non-sublicensable, limited license to use the Licensed Products in machine readable form only, and to utilize the Licensed Product(s), by you, for Your individual use only, in accordance with the user documentation, for the term indicated when You downloaded the Licensed Products from BackUp Solutions’ web pages and/or purchased the Licensed Products from BackUp Solutions (hereinafter referred to as the "Term"). You may make one (1) copy of the Licensed Product(s) solely for backup purposes. Any and all use of the Licensed Products shall always be and remain subject to this Agreement. License Restriction. You shall display and retain BackUp Solutions and/or its suppliers' copyright, trademark, proprietary, or confidentiality statement and other notices on any portion of the Licensed Products, however such Licensed Products are used. You shall (i) not attempt to reverse engineer, decompile, disassemble, or attempt to derive the source code of the Licensed Product or any portion thereof, or otherwise derive its source code; (ii) not modify, port, translate, localize or create derivative works of the Licensed Product; (iii) not disclose the results of any performance tests or qualitative analysis on the Licensed Products(s) to any third party without the prior written consent of BackUp Solutions; (iv) not use the Licensed Product(s) in a way 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/import control, unfair competition, anti-discrimination and/or false advertising); (c) is defamatory, trade libelous, unlawfully threatening, or unlawfully harassing; (d) is obscene, pornographic or indecent in violation of applicable law; or (e) to propagate any virus, worms, Trojan horses or other programming routine intended to damage any system or data; (v) not use the Licensed Product(s) in any application that may involve risks of death, personal injury, severe property damage or environmental damage, or in any life support applications, devices or systems and (vi) not use a total number of licenses in excess of the total amount allocated to You. The license granted hereunder is specific to You only, and is not transferable to any other person or business entity, including subsidiaries and successors-in-interest to You, without the prior written consent of BackUp Solutions. Evaluation Period and Privacy Fees. Commencing upon Your completion of the installation of the Licensed Products, You shall be allowed to use the Licensed Products free of charge for the number of days indicated when you downloaded the Licensed Products from BackUp Solutions’ web pages and/or purchased the Licensed Products from BackUp Solutions (hereinafter referred to as the "Evaluation Period"). After the Evaluation Period, You shall automatically be charged all applicable fees for the Licensed Products based on the offering You selected. You shall be liable for payment of all taxes (including but not limited to all taxes, assessments, duties, tariffs, imposts, permits sales, use, excise, import, export, value-added, or similar tax, duty, and fees, however designated) that are levied upon and related to the performance of services or the exercise of rights under this Agreement. All fees related to using Licensed Products are charged automatically using the payment method provided by You. You acknowledge and understand that BackUp Solutions will continue to charge You for service as long as Your account remains active regardless of whether the service is used or not. Iron Mountain may be required to collect and remit taxes from You, unless You provide BackUp Solutions with a valid tax exemption certificate. BackUp Solutions will invoice You for all such taxes based upon this Agreement or on Software or Services provided under this Agreement. In no event will either party be responsible for any taxes levied against the other party's net income. Privacy Policy. All use by BackUp Solutions of personal information collected from You through and/or arising from Your registration of the Licensed Products, shall be done in accordance with applicable privacy legislation provided You have furnished BackUp Solutions with the designated country of origin of such personal information so that BackUp Solutions may so comply with such applicable law and BackUp Solutions’s privacy policy, which is currently located at www.backupsolutions.com\privacy_policy.php. You appoint BackUp Solutions to process any such personal information on your behalf. You warrant that You have all necessary authorizations and approvals required to process such personal information and to enable BackUp Solutions to do the same as required for the provision of the services. BackUp Solutions shall act only on reasonable instructions from You with respect to such personal information. Upon Your completion of the installation of the Licensed Products, You grant permission to BackUp Solutions to verify Your personal information, including all information pertaining to Your credit card (used for payment of fees under this Agreement) with the appropriate credit agency and/or other applicable administrative organization. Termination & Suspension Termination for Breach. BackUp Solutions may, by written notice to You, which may include electronic mail (email), terminate this Agreement, including all licenses granted hereunder, if any of the following event(s) occurs: (a) the failure of You to pay BackUp Solutions in full for any fee(s) and/or charge(s) due to Iron Mountain if payment is not rendered within ten (10) days after the payment was due; (b) any breach of any material term or obligation of this Agreement if not remedied within thirty (30) days after receipt of written notice; (c) any material breach of license grants, license restrictions, intellectual property rights, or confidentiality provisions provided herein effective immediately upon receipt of notice from BackUp Solutions; or (d) Your insolvency. EU Data Protection Act; Export Controls European Union Data Protection Act. In accordance with Commission Decision 2002/16/EC of 27 December 2001 on standard contractual clauses for the transfer of personal data to third countries, under Directive 95/46/EC, the Annex titled "Standard Contractual Clauses" is hereby incorporated by reference in its entirety. With respect to such Annex the "data exporter" shall be defined as "You" and the "data importer" shall be defined as " BackUp Solutions ". You may find a complete version of the text at http://europa.eu.int/eur-lex/pri/en/oj/dat/2002/l_006/l_00620020110en00520062.pdf . Export Controls. You understand that the Licensed Products are subject to regulation by agencies of the United States Government, as well as the laws and regulations of other applicable countries which prohibit export, importation or diversion of certain technological products or services to certain countries and individuals. You hereby specifically agree to comply in all respects with such export, re- export, and/or import restrictions. You further agree not to export/import or attempt to export/import the Licensed Products without the prior written consent of BackUp Solutions. You may not export/import or re-export/import the Licensed Software (or provide to a national of) countries in the US Government Country Group E:1 or E:2 without a license or license exception from the U.S. Department of Commerce nor otherwise violate any provisions of U.S. export laws. Intellectual Property Rights Intellectual Property Rights. All intellectual property rights in and to the Licensed Products shall remain the property of Iron Mountain and BackUp Solutions (and/or its suppliers if applicable), exclusively. You shall have no right in or to the Licensed Products except as expressly set forth in this Agreement. Intellectual property includes, but is not limited to, patents, inventions, invention disclosures, Marks (as defined below), trade secrets, know-how, formulae and processes, software programs, proprietary data and databases, copyrights and all other similar items of intellectual property, whether registered or unregistered, including any rights created thereof, all proceeds thereto, and the right to sue for past, present and future infringements. All rights not expressly granted hereunder by Iron Mountain and/or BackUp Solutions are reserved for Iron Mountain and/or BackUp Solutions (and/or its suppliers, if applicable). BackUp Solutions retains the rights in and title to its respective trade names, trademarks, service marks, logos, domain names and other branding elements and identifiers (the "Marks"), and any other intellectual property previously or generally developed by Iron Mountain, its affiliates or BackUp Solutions. You shall not copy, use, display, distribute or transfer the Marks or other Intellectual Property of Iron Mountain or BackUp Solutions, except as expressly provided by this Agreement. Intellectual Property Infringement Intellectual Property Indemnification. Iron Mountain and/or BackUp Solutions will defend, at its own expense, any action against You based upon a claim that a Licensed Product(s) infringes a United States patent or United States copyright or involves misappropriation of a trade secret. Iron Mountain and/or BackUp Solutions will pay such damages or costs as are finally awarded against You for such infringement or misappropriation provided that You give BackUp Solutions: (a) prompt written notice of any such action and of all prior related claims; (b) sole control of the defense and settlement of such action; and (c) full cooperation in any defense or settlement. Iron Mountain and/or BackUp Solutions shall not be liable for any fees, costs or damages incurred without such prior written notice, control and cooperation. Notwithstanding the foregoing, Iron Mountain and/or BackUp Solutions shall have no liability for any claim of infringement of a patent, copyright or other intellectual property right or trade secret misappropriation, based upon the use of any Licensed Product (a) with any other product not supplied and or approved by Iron Mountain; (b) in any manner or purpose for which the Licensed Product was not designed (including changes to the Licensed Product); (c) if the infringement or misappropriation would have been avoided by Your use of the most current version of the Licensed Product; or (d) which have been modified by anyone other than Iron Mountain. Exclusive Intellectual Property Infringement Remedy. Should any Licensed Product become, or in Iron Mountain's sole opinion be likely to become, the subject of a claim of infringement or trade secret misappropriation as set forth herein, Iron Mountain shall, at its option and expense: (a) obtain for You the right to continue using the Licensed Product; (b) replace or modify the Licensed Product so its use becomes non-infringing or otherwise lawful; or (c) terminate the license granted hereunder with respect to the infringing Licensed Product(s) and refund the license fee paid by You for the infringing Licensed Product(s), less a reasonable allowance for past use. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR INTELLECTUAL PROPERTY INFRINGEMENT. Limited Warranty & Disclaimer Licensed Product(s) Limited Warranty. Iron Mountain and BackUp Solutions warrant that the Licensed Product(s) will conform substantially in accordance with its documentation for ninety (90) days from delivery. If Iron Mountain confirms a defect reported by You in the unaltered Licensed Product(s), Iron Mountain will use commercially reasonable efforts to remedy the nonconformance. Iron Mountain and BackUp Solutions do not warrant that the operation or utilization of any Licensed Product(s) will be uninterrupted or error free, nor does it guarantee that its remedial efforts will correct any nonconformance. Corrections will be warranted for the remainder of the original warranty period. If any Licensed Products fails to comply with any warranty set forth in this Section and Iron Mountain and/or BackUp Solutions does not remedy such failure as required by this Section, BackUp Solutions obligation and liability, and Your exclusive remedy, for such failure shall be limited to the refund in a maximum amount equal to the license and maintenance fees paid by You within the last six (6) month period prior to such failure, excluding reasonable amounts for past use, for such Licensed Products, upon the return of such Licensed Products to BackUp Solutions, in which event this Agreement shall terminate with respect to such Licensed Products. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. THIS SHALL BE YOUR SOLE AND EXCLUSIVE REMEDY FOR ANY BREACH OF WARRANTY. DATA CONTENT DISCLAIMER. YOU EXPRESSLY RECOGNIZE THAT IRON MOUNTAIN AND BACKUP SOLUTIONS DO NOT CREATE, OPERATE, CONTROL OR ENDORSE ANY DATA, INFORMATION, THIRD-PARTY PRODUCTS, PROCESSED BY THE LICENSED PRODUCTS OR SERVICES PROVIDED VIA ANY LICENSED PRODUCTS HEREUNDER, INCLUDING BUT NOT LIMITED TO, INFORMATION OBTAINED. IRON MOUNTAIN AND BACKUP SOLUITONS DO NOT MAKE ANY EXPRESS OR IMPLIED WARRANTY, REPRESENTATION OR ENDORSEMENT TO YOU OR ANY THIRD PARTY WHATSOEVER WITH REGARD TO ANY DATA, INFORMATION, PRODUCTS OR SERVICES PROVIDED IN CONJUNCTION WITH THE LICENSED PRODUCTS, INCLUDING, WITHOUT LIMITATION, WARRANTIES OF: 1) MERCHANTABILITY; 2) FITNESS FOR A PARTICULAR PURPOSE; AND 3) NON-INFRINGEMENT. IRON MOUNTAIN AND BACKUP SOLUTIONS SHALL NOT BE LIABLE TO YOU OR ANY THIRD PARTY FOR ANY COST OR DAMAGE ARISING, EITHER DIRECTLY OR INDIRECTLY, FROM ANY LOSS OF DATA. GENERAL DISCLAIMER. IRON MOUNTAIN AND BACKUP SOLUTIONS MAKE NO WARRANTY OF ANY KIND, WHETHER EXPRESSED OR IMPLIED, WRITTEN OR ORAL, EXCEPT AS EXPRESSLY STATED HEREIN. ADDITIONALLY, IRON MOUNTAIN DISCLAIMS ALL OTHER WARRANTIES, EXPRESSED AND IMPLIED, INCLUDING WITHOUT LIMITATION, THE IMPLIED WARRANTIES OF MERCHANTABILITY, FITNESS FOR A PARTICULAR PURPOSE AND FREEDOM FROM INFRINGEMENT WITH RESPECT TO ALL LICENSED PRODUCTS, UPDATES, UPGRADES, NEW RELEASES AND ALL OTHER PRODUCTS, SERVICES, MATERIALS AND OTHER ITEMS FURNISHED UNDER, OR IN CONNECTION WITH, THIS AGREEMENT. General Limitation of Liability Limitation of Liability. Iron Mountain's and BackUp Solutions’ (and its suppliers') entire liability, and Your exclusive remedy, for any and all claims arising under or in connection with this Agreement or related to any item or service provided under or in connection with this Agreement, regardless of the form of the action (including negligence), whether in breach of warranty, contract, tort, strict liability or otherwise, shall be limited to a maximum amount equal to the license and maintenance fees paid within the last six (6) month period prior to such loss. You expressly recognize and acknowledge that such limitation of liability is an essential part of this Agreement and is an essential factor in establishing the price of the Licensed Products. You shall cause your insurers of data, if any, to waive any right of subrogation against Iron Mountain and BackUp Solutions. EXCLUSION OF DAMAGES. IN NO EVENT SHALL IRON MOUNTAIN OR BACKUP SOLUTIONS (NOR ANY OF ITS SUPPLIERS) BE LIABLE FOR DAMAGES RESULTING FROM LOSS OF DATA, LOST PROFITS, BUSINESS INTERRUPTION, LOST REVENUE, OR LOST BUSINESS, IN CONNECTION WITH THE USE OF ANY LICENSED PRODUCT OR ANY OTHER ITEM OR SERVICE PROVIDED UNDER THIS AGREEMENT, NOR FOR COSTS OF PROCUREMENT OF SUBSTITUTE GOODS, NOR FOR ANY SPECIAL, INDIRECT, INCIDENTAL OR CONSEQUENTIAL DAMAGES ARISING OUT OF, OR IN CONNECTION WITH, THIS AGREEMENT OR ANY PRODUCT, SERVICE OR OTHER ITEM PROVIDED UNDER THIS AGREEMENT, WHETHER IN BREACH OF WARRANTY, CONTRACT, TORT, STRICT LIABILITY OR OTHERWISE (INCLUDING NEGLIGENCE), EVEN IF IRON MOUNTAIN OR BACKUP SOLUTIONS HAS BEEN ADVISED OF THE POSSIBILITY OF SUCH DAMAGES. General Assignment. Neither this Agreement nor any of Your rights or obligations under this Agreement shall be assigned or transferred by You without the prior written consent of Iron Mountain and any attempted assignment or transfer without such consent shall be voidable by BackUp Solutions upon notification. You agree that this Agreement binds You and each of Your employees, agents and persons associated with You, including Your affiliated and subsidiary firms, corporations and other organizations. Force Majeure. Iron Mountain and BackUp Solutions shall not be liable for any failure or delay in performing services or any other obligation under this Agreement, nor for any damages suffered by You by reason of such failure or delay, which is, indirectly or directly, caused by strike, riot, acts of terrorism, natural catastrophe or other act of God, or any other cause beyond Iron Mountain's or BackUp Solutions’ reasonable control. Limitations Period. Neither party may bring any action under this Agreement for any cause whatsoever more than two (2) years after the occurrence giving rise to such cause of action; provided, however, that this Section shall not apply to any action brought by Iron Mountain or BackUp Solutions to protect their intellectual property rights or confidential information. No Waiver. If either party fails to perform any of its obligations hereunder and the other party fails to enforce the provisions relating thereto, such party's failure to enforce this Agreement shall not prevent its later enforcement. Severability. If any provision of this Agreement is determined by a court to be, or becomes, invalid, unenforceable or illegal, such provision shall be (a) modified to be made valid, enforceable and legal in such a manner as to best effectuate the intent of the parties on the date hereof or (b) deemed eliminated where such modification is not practicable; the remainder of this Agreement shall remain in effect in accordance with its terms as modified by such modification or deletion. Notices. All notices and correspondence under this Agreement shall be in writing and shall be delivered by personal service, confirmed facsimile, express courier, or certified mail, return receipt requested, to the addresses first set forth herein, or at such different address as may be designated by such party by written notice to the other party from time to time. All notices shall be deemed received and effective upon receipt if delivered personally or sent by express courier or confirmed facsimile, and seven (7) days after mailing if sent by certified mail. Governing Law for US Citizens/Entities. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, excluding its rules regarding conflict of laws. The parties mutually agree and submit to jurisdiction in the federal or district courts of Middlesex or Suffolk Counties, Massachusetts. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Both parties shall comply with all applicable administrative and export/import laws, including but not limited to the Foreign Corrupt Practices Act, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations, as the same may be amended from time to time. Governing Law for Non-US Citizens/Entities. You agree to submit all disputes arising out of or relating to this Agreement to final binding arbitration in accordance with the then-existing Commercial Rules of the American Arbitration Association, before a single arbitrator selected from the international arm of the American Arbitration Association. If you reside in Europe, the proceedings shall be held in the United Kingdom; if you reside in Latin America, the proceedings shall be held in Santiago, Chile; and if you reside elsewhere, you may choose among the U.S., U.K. or Chile. The parties expressly agree that the U.N. Convention on Contracts for the International Sale of Goods shall not apply to this Agreement. Both parties shall comply with all applicable administrative and export/import laws, including but not limited to the Foreign Corrupt Practices Act, the U.S. Export Administration Regulations and the U.S. International Traffic in Arms Regulations, as the same may be amended from time to time. Irreparable Harm. You acknowledge that Your breach of this Agreement may cause irreparable harm to Iron Mountain and/or BackUp Solutions, and You agree that Iron Mountain and/or BackUp Solutions shall be entitled to injunctive relief in the event of such a breach. Modifications & Enforceability. No modification of this Agreement shall be binding upon either party unless made in writing and signed by an authorized representative of BackUp Solutions and You. If any provision of this Agreement is held unenforceable for any reason whatsoever, the unenforceable provision will be construed in accordance with applicable law as nearly as possible to reflect the original intent, and all other provisions will remain in full force and effect. Purchase Orders. In the event that You issue a purchase order to BackUp Solutions covering the services provided under this Agreement, other than ordering information, (i.e., quantity of licenses ordered, billing address, shipping address) all other terms and conditions set forth in the purchase order which constitute terms and conditions which are in addition to or which establish conflicting terms and conditions to those set forth in this Agreement are expressly rejected by BackUp Solutions and shall be replaced with the applicable terms and conditions of this Agreement. Survival. The following Sections shall survive the expiration or termination of this Agreement: "Intellectual Property Rights"; "Intellectual Property Infringement"; "Limited Warranty & Disclaimer"; "General Limitation of Liability"; and "General." Limited Use. 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. The Licensed Products and the Documentation have been developed at private expense and are sold commercially to the general public. They are provided under any U.S. government contracts or subcontracts with the most restricted and the most limited rights permitted by law and regulation. Whenever so permitted, the government and any intermediate buyers will obtain only those rights specified in our standard commercial license. Thus, the Licensed Products referenced herein, and the Documentation provided by Iron Mountain and/or BackUp Solutions hereunder to any agency of the U.S. Government or U.S. Government contractor or subcontractor at any tier shall be subject to the maximum restrictions on use as permitted by FAR 52.227-19 (June 1987) or DFARS 227.7202-3(a) (Jan. 1, 2000) or successor regulations. The manufacturer is Iron Mountain located at 120 Turnpike Road, Southborough, Massachusetts, United States, 01772. Copyright © 2007 BackUp Solutions, Inc. All rights reserved. Connected and Connected Back-up/PC are Registered Trademarks of Iron Mountain Incorporated.

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