Dr.Backup - Service and Software License Agreements

Transcription

1 Dr.Backup - Service and Software License Agreements STANDARD SERVICE AGREEMENT This is an Agreement between Doctor Backup, LLC (a limited liability company formed in Maryland), which in the rest of this Agreement is called us or our or we, and a User of our service, which in the rest of this Agreement is called you or your. 1. BACKUP SERVICE In accordance with the terms and conditions set forth in this Service Agreement, we agree to provide you the ability to store and retrieve your computer files from our storage facilities (using a public Internet connection that you provide) and certain software we provide that gets installed on your computer(s). We also offer an optional capability that allows you, at your own risk, to use this same software we provide to store and retrieve additional computer files from storage facilities you alone provide and maintain. We refer to this capability as backing up to private cloud storage and it is available as an option only to paid users of our regular backup service. 2. PAYMENT FOR SERVICE You agree to qualify for service by means of a valid credit card, or by another payment method we agree to prior to the start of service. You agree to pay for the ability to use our service for a minimum term of 30 days beginning on the date the service is made available for your use, and renewing automatically until terminated (see TERMINATION below). The minimum billing is for one month's service. We offer pre-paid service contracts of varying durations, some of which may be discounted, and are strictly non-refundable. Irrespective of the service duration you select, if service is terminated for any reason other than our breach, we will make no pro-rata adjustments or refunds of any previously paid fees. The rate we charge you may vary according to your specific needs, primarily the amount of disk storage available for your use and the number of computers that are authorized to use the service. 3. DAMAGES EXCLUSION AND WARRANTY DISCLAIMER

2 We rightfully claim that the use of our services will greatly increase the likelihood that your files that get lost, damaged or destroyed may be successfully restored from a backup copy you have stored on our service. We will always do our best to use effective methods of storage and to make the contents of this storage readily available to you. Still, WE MAKE NO GUARANTEE OR WARRANTY THAT THE SYSTEM AND SERVICES WILL AVERT, AVOID OR PREVENT THE LOSS OF FILES, DATA OR INFORMATION THAT WE MAINTAIN. Any combination of natural disaster, technological failures and/or human activities may cause us to lose our copies of your files, although we believe the chances of loss to be extremely small. A critically important step in the installation of the backup software on each computer is the creation of private encryption key. This key is used to secure copies of your files before they are transferred over the Internet to our storage facilities. This helps to ensure the confidentiality of your files, since without the key, the contents of your files cannot be understood. Should you ever need to retrieve backup copies of your files from us, your encryption key may be required and you should assume it will be. WE HAVE NO READY WAY TO RECOVER YOUR PRIVATE ENCRYPTION KEY IF YOU LOSE IT AND YOUR COMPUTER SYSTEM HAS ALREADY FAILED. Therefore, under no circumstances will we be responsible for your files being unavailable due to your inability to accurately recall your private encryption key. It is also true that you, not we, are solely responsible for the selection of which files, folders or other information you desire the backup software to copy to our storage facilities. You are also responsible for ensuring that the backup software configuration is updated any time that changes occur on your computer or to the location(s) where you store information that you desire backed up. The software may not be able to make a copy of files or folders where it is denied access by the operating system of your computer something we have no control over. Therefore, if your computer does not provide the software with access to the selected information, we cannot backup this information. Still, we will help you by phone and provide remote technical support to assist you in configuring the software, to the greatest degree possible, so that it does the right backups. We normally include this type of support service at no additional cost. But, the decision to ask for our assistance when needed is ultimately yours. You acknowledge that the services rendered and the system as a whole are complex and may not be error-free. You do not desire this agreement to provide full insurance for loss, damage or injury because it would be unaffordable, and also we are not an insurance carrier. Therefore, you agree that WE ARE NOT LIABLE, nor are our officers, members, contractors or employees liable, to you for damages. The DAMAGES EXCLUDED ARE: direct or indirect damages for personal injury or death, direct or indirect damages for loss of physical property, incidental damages, direct or

3 indirect damages for loss of business profits, business interruptions, loss of business information or any other pecuniary loss, direct or indirect damages of any other description, damages that have in any way to do with the backup service we provide or to do with installing, adjusting, configuring or in any other way dealing with the software that we will or have installed on your computer(s). This damages exclusion applies whether the allegation is for a breach of contract or warranty, negligence or any other tort, alleged breach of statute or any other allegation. 4. CHANGES IN SERVICE FEES OR OTHER TERMS From time to time and at our sole discretion we may increase the fees we collect from you for providing service. We must notify you of such an increase by electronic mail at least 30 days before the effective date of the rate change. If you are unwilling to pay the increased charges, you may terminate this Agreement upon giving us notice, by either or letter, and discontinuing use of the service at the end of the current contract term. If you continue to use the service we will conclude you accept and agree to pay any revised service fees. We may be required to collect government mandated taxes from you in the future. These may be called sales tax, property tax, telecommunication tax or otherwise. Whatever called, if the taxes are a specific result of us serving you, we will automatically add these taxes to your bill and you agree to pay them. We may also from time to time and at our sole discretion change the terms of this Agreement. We must notify you of such a change by electronic mail at least 30 days before the effective date of the change. If you are unwilling to abide by the changes we make, you may terminate this Agreement upon giving notice by or letter and discontinuing use of the service at the end of the current contract term. Every time your computer completes a backup using our service we will send an to the address(es) you designate. It will help you to know whether things are happening as they should. It will also give important news and messages about our service, including changes to this Agreement, etc. When we send a change in terms to you in this way YOU AGREE NOW THAT IT BINDS BOTH OF US UNLESS YOU REJECT IT BY NOTIFYING US by or letter. If you do so notify us, then your service will be terminated at the end of the current contract term, or immediately, if we in our sole discretion believe the changes to be of an emergency nature. 5. ASSIGNABILITY

4 We shall have the right to assign this agreement to any person, firm or corporation to be carried out. You may assign this Agreement to a different user with written notice to us including proper billing instructions for the new user. Such user assignment shall be effective when we approve of the new user s credit card, financial statement or with its prepayment of required service fees. 6. INTERNET CIRCUITS You are responsible for the cost, connection, installation, maintenance and all other aspect of all Internet communication circuits required for data file transmission and system access. All data files are transmitted over Internet circuits, which are wholly beyond our control and jurisdiction, and are maintained by the communication companies (often called Internet Service Providers or ISPs) engaged for service by you. If these Internet circuits are not functional for any reason, backup data files may not accurately or completely reach our facility or equipment. We cannot be responsible for the continued operation of these circuits nor the reliability of the data files being sent over them. 7. SUSPENSION OF SERVICE We may immediately, and without prior notice to you, suspend your access to the service if a court of apparently competent jurisdiction so orders us. In such a case, unless ordered otherwise, we will suspend your ability to do backups and restores. While your service is suspended, we will preserve your data that we hold. We may also suspend your service if we believe, in our sole discretion, that your use is abusive to our system. Instances of abuse may include, but are not limited to, storage levels chronically beyond those included in your service package or data transmission rates and/or durations that are excessive. In such a case we will notify you as promptly as possible and preserve your data that we hold for up to thirty (30) days as needed to resolve the abuse situation. 8. TERMINATION Either party may TERMINATE THIS AGREEMENT BY WRITTEN NOTICE NO LESS THAN THIRTY DAYS (30) IN ADVANCE OF DESIRED TERMINATION DATE. In the event of non-payment of fees, we may terminate service with a 10- day notice to your latest known address. Written notice of intent to cancel should be sent to: Doctor Backup, LLC 8405 Cherry Laurel CT

5 Laurel, MD Or If we terminate your service for any reason, you will no longer be permitted access to our storage facilities. We will hold onto your data for up to thirty (30) days after the termination so that you may request a physical copy be sent to you on electronic media. Additional data recovery charges may apply, and if so, must be pre-paid. 9. WARRANTY BY YOUR AGREEMENT MAKER AND YOUR ACCEPTANCE This is an Agreement that you or someone on your behalf AGREES TO BY CLICKING a button on a web form or BY CLICKING TO INSTALL A COPY OF THE BACKUP SOFTWARE on your computer. These actions are FULLY EFFECTIVE as a written signature. The individual clicking for this Agreement ( he/she ) warrants that he/she has the authority to make this Agreement on your behalf. He/she also warrants he/she has the authority to permit the installation of the backup software provided with the service on your computer(s). He/she also warrants that he/she has the authority to bind you to all the notices by of tax collections, rate changes and terms changes described in section 4 of this Agreement. He/she does not merely substitute his/her responsibility for these but adds his/her responsibility to yours. 10. COMPLETE AGREEMENT This document, along with any specified addendum, is a complete Agreement. Any representation, promise, condition, inducement or warranty, express or implied, oral or written, unless expressed in writing in this Agreement or any addendum thereto, shall not bind either of us, and the terms and conditions hereof apply as printed without alteration or qualifications except as specifically here in writing. 11. SEVERABILITY If a court of competent jurisdiction declares any part of this Agreement void, that shall not nullify the balance of this Agreement, which shall remain in full force and effect. 12. LITIGATION AND CHOICE OF LAW This Agreement shall be interpreted and given legal effect according to the law of Maryland, the state in which our office is and where we were created as an LLC, except for Maryland s choice of law rules. Any suit at law or in equity must be

6 brought in a court of Maryland or the federal District of Maryland, and if in a state court then in Howard County. 13. OUR ACCEPTANCE This Agreement shall not be binding on us unless we show acceptance by notifying you that we have accepted, which normally happens when we are able to charge your credit card or we receive payment via check and you a paid receipt. Version STANDARD SOFTWARE LICENSE AGREEMENT This software license agreement is a legal agreement between you as the Licensee (either an individual or an entity) and the Software Licensor. By opening the sealed software packet(s), clicking an "ACCEPT" button during installation or purchase, and/or using the software you are agreeing to be bound by the terms of this agreement. 1. GRANT OF LICENSE. This License Agreement permits you to use one copy of the SOFTWARE on a single computer. 2. COPYRIGHT. The SOFTWARE and accompanying materials (including any images, "applets", photographs, animations, video, audio, music and text incorporated into the SOFTWARE and accompanying materials) is owned by the Licensor and is protected by United States copyright laws and international treaty provisions and all other applicable national laws. Therefore, you must treat the SOFTWARE and accompanying materials like any other copyrighted material (e.g. a book or musical recording) except that you may either (a) make one copy of the SOFTWARE solely for backup or archival purposes or (b) transfer the SOFTWARE to a single hard disk provided you keep the original solely for backup or archival purposes. 3. RESTRICTED USES. You may not install or use this software on computers that are connected to life-saving or life-support medical equipment, nor on any equipment used in the production or administering of drugs or breathable gasses, nor on any equipment that, through malfunction or misuse, could directly or indirectly cause physical injury or death. 4. OTHER RESTRICTIONS. You hereby agree not to reverse engineer, decompile or disassemble the SOFTWARE. You agree not to analyze the software, its data

7 files, or transmission protocols in an attempt to discover its systems and methods of operation. You agree not to communicate to others any discovery of technical procedures, systems and methods, or protocol of the Software. You hereby agree that the Software does not infringe on any patent, copyright, trademark, or other intellectual property rights under your control either directly or indirectly, or under the control of any company or other entity to which you report. You agree to hold harmless the Licensor in any intellectual property dispute that might arise from the discovery or disclosure of such information by you as a result of a violation of this paragraph. 5. U.S. GOVERNMENT RESTRICTED RIGHTS. The SOFTWARE and documentation are provided with RESTRICTED RIGHTS. Use, duplication or disclosure by the United States Government is subject to restrictions as set forth in subparagraph (c)(1)(ii) of The Rights in Technical Data and computer Software clause at DFARS or subparagraphs (c)(1) and (2) of the Commercial Computer Software-- Restricted Rights at 48 CFR , as applicable. Manufacturer is the Licensor. 6. EXPORT CONTROLS. You may not download or otherwise export or reexport the Software or any underlying information or technology except in full compliance with all United States and other applicable laws and regulations. In particular, but without limitation, none of the Software or underlying information or technology may be downloaded or otherwise exported or reexported (i) into (or to a national or resident of) Cuba, Haiti, Iraq, Libya, Yugoslavia, North Korea, Iran, Syria or any other country to which the U.S. has embargoed goods; or (ii) to anyone on the U.S. Treasury Department's list of Specially Designated Nationals or the U.S. Commerce Department's Table of Deny Orders. By downloading or using the Software, you are agreeing to the foregoing and you are representing and warranting that you are not located in, under the control of, or a national or resident of any such country or on any such list. 7. INSTALLATION AND SUPPORT. You and/or your Service Provider are solely responsible for the installation and maintenance of the Software, and for the proper installation, configuration, and operation of the software and the hardware, supporting software, and services upon which the Software relies. You and/or your Service Provider are solely responsible for the configuration and operation of the Software. You are responsible for selecting the correct settings software. The Software is delivered with certain default settings which may not be appropriate for all Clients. 8. TECHNICAL SUPPORT. Your Service Provider will provide technical support for the Software through whatever means it uses. The Licensor is NOT responsible, and will not provide, Technical Support directly to Clients.

8 Product support for the SOFTWARE is provided by the Service Provider For product support, please refer to your Service Provider's telephone number or web site. 9. DEFINITIONS. "Licensor" is Online Holdings, LLC, of Eads, TN USA. "Service Provider" is the company or individual who provided this Software and who hosts the Server and provides remote backup services to you. If you are operating your own Server, YOU are the Service Provider APPENDIX WARRANTY AND SPECIAL PROVISIONS FOR UNITED STATES OF AMERICA AND ANY OTHER COUNTRY LIMITED WARRANTY LIMITED WARRANTY. Any implied warranties on the SOFTWARE are limited to fifteen (15) days. Implied warranty is voided by misapplication, misuse, attempted use outside the recommended software environment, on equipment or networks not suited to the SOFTWARE, or which could have been avoided by reading the documentation included with the Software. CUSTOMER REMEDIES. The Licensor's and Service Provider's, its officers' and employees' entire liability and your exclusive remedy shall be, at the sole discretion of the Licensor or Service Provider, repair or replacement of the SOFTWARE that does not meet this Limited Warranty, or refund of money paid. This Limited Warranty is void if failure of the SOFTWARE has resulted from accident, abuse or misapplication. NO OTHER WARRANTIES. To the maximum extent permitted by applicable law, the Licensor, its officers, and employees disclaim all other warranties, either express or implied, including but not limited to suitability for any particular purpose. SERVICE PROVIDER'S WARRANTY. The Service Provider may have different warranty and return/refund policies than those outlined in the above paragraph for the Licensor. Check with your Service Provider or its Service Agreement for more information. ACCEPTANCE OF THESE CONDITIONS. By clicking the "YES" button during software installation, or by downloading, installing or using the software, you accept the terms of this license agreement. You agree that you fully understand the capabilities of the software, and that you accept the software as-is. This limited warranty gives you specific legal rights. You may have others which vary from state/jurisdiction to state/jurisdiction.

9 NO LIABILITY FOR CONSEQUENTIAL DAMAGES. To the maximum extent permitted by applicable law, in no event shall the Licensor or the Service Provider, or their officers, or employees be liable for any damages whatsoever (including without limitation, direct or indirect damages for personal injury, loss of business profits, business interruptions, loss of business information or any other pecuniary loss) arising out of the use of or inability to operate this product, misapplication, failure to read and understand the operating instructions in all its forms - Help Files, Web based, printed, and verbal, even if the Licensor and/or the Service Provider has been advised of the possibility of such damages. In any case, the Licensor's and the Service Provider's, (including their officers', and employees') entire liability under any provision of this agreement shall be limited to the amount actually paid by you to the Licensor or the Service Provider for the SOFTWARE and any accompanying services. IN NO EVENT SHALL THE LICENSEE, the SERVICE PROVIDER AND/OR THEIR OFFICERS OR EMPLOYEES BE LIABLE FOR ANY SPECIAL, INDIRECT OR CONSEQUENTIAL DAMAGES OR ANY DAMAGES WHATSOEVER RESULTING FROM LOSS OF USE, DATA OR PROFITS, WHETHER IN AN ACTION OF CONTRACT, NEGLIGENCE OR OTHER TORTUOUS ACTION, ARISING OUT OF OR IN CONNECTION WITH THE USE OR PERFORMANCE OF SOFTWARE, DOCUMENTS, PROVISION OF OR FAILURE TO PROVIDE SERVICES, OR INFORMATION AVAILABLE FROM ANY OF THE LICENSOR'S OR SERVICE PROVIDER'S WEB SITES OR INFORMATION SERVICES. Should it become necessary for the Licensor or Service Provider to retain counsel to enforce its rights, or defend any action or inaction under this agreement, you agree to pay all costs of such enforcement and/or defense, including, but not limited to, all court costs and other litigation expenses, together with the Licensor's and/or Service Provider's reasonable attorney fees. If the Licensor is a party, this agreement shall be governed by the laws of the state of Tennessee. If the Service Provider AND NOT the Licensor is a party, this agreement shall be governed by the laws of the state in which the Service Provider maintains its head office. In either case, this agreement shall inure to the benefit of the Licensor and/or Service Provider and any successors, administrators, heirs, and assigns. Any action or proceeding brought by either party against the other arising out of or related to this agreement shall be brought (if the Licensor is a party) only in a STATE or FEDERAL COURT of competent jurisdiction located in Shelby County, Tennessee; and if the Service Provider is a party, in the county and state in which the Service Provider maintains its head office. If both the Licensor and the Service Provider are parties, any action shall be brought only in a STATE or FEDERAL COURT of competent jurisdiction located in Shelby County, Tennessee. The parties hereby consent to in personam jurisdiction of said courts Form C