End User License Agreement
& Terms of Service
1 ACKNOWLEDGEMENT
The parties referred to herein acknowledge and agree to the matters set out hereunder in this Subscription Agreement.
To complete your downloading and or installation of the Software, you (the Subscriber) must accept the terms and conditions of this Agreement by electronically checking the box commencing "I accept"; but before doing so, we urge you to read this Agreement.
If for any reason (including downloading or installing the software) you check the box commencing "I accept" without having read and understood this Agreement (which is a course of conduct which we do not recommend you to follow), you should revisit and read this Agreement as soon as possible, and in any case you should do so before you commence using the Software or the Service.
Use of the Software and of the Service is undertaken on the basis of these terms and conditions. If you choose not to read these terms and conditions, but use the Software and or the Service, then you are deemed to have accepted these terms and conditions as though you had read them, and understood them, and explicitly agreed to these terms and conditions.
This Agreement governs your use of the Service and the Software as defined hereunder and all related components thereof, and is a legally binding agreement which creates important legal obligations.
2 DEFINITIONS
In this agreement:
"Agreement": means this agreement (which is also called the My Backup Drive Subscription Agreement or End User License Agreement or EULA) between the Licensor and the Subscriber, as modified from time to time.
"Licensor": means ConsumerSoft.
"Licensor's Address": means 210 West 29th Street, 7th Floor, New York, NY, 10001.
"Licensor's E-mail Address": means
"Licensor's Associates": includes all parties associated in any way whatsoever with the Licensor (and at the Licensor's sole discretion includes without limitation the Licensor's suppliers, licensors, employees, officers, parents, subsidiaries, affiliates, associates, directors, contractors, sub-contractors, co-branders, partners, attorneys, or agents, and include natural persons or corporations or other entities).
"Service": means the My Backup Drive backup service for storage and recovery of computer files as referred to herein.
"Software": means the My Backup Drive software (also called the My Backup Drive Windows Client software) which is installed on your computer and through which the Service is delivered; and includes all related components of the Software, and includes any upgrades and amendments to the Software from time to time.
"Subscriber": means the person or corporation entitled, pursuant to this Agreement, to use the Software or the Service, and includes any person who does in fact use the Software or the Service on any basis whatsoever. The Subscriber is also referred to as "you" in this Agreement.
"Subscription Agreement": means this agreement as modified from time to time. The Subscription Agreement is also known as an End User License Agreement (EULA).
"We": means the Licensor.
"You": means the Subscriber.
3 ACCESS TO THE SERVICE
If you use the Service, you become a Subscriber to the Service, whether you are a paying subscriber, or a subscriber who is using the Service on a free trial basis, or a subscriber who is evaluating a beta release of the Software, or otherwise.
By using the Service, the Subscriber agrees to use the Service and the Software on the basis of this Agreement. Please read this Agreement carefully because it forms the basis of the legal relationship between you (you means the Subscriber) and any other users on the one hand, and the Licensor on the other hand.
Subscribers and other users of the Software or any part thereof, and or of the Service or any part thereof, must agree to the following terms and conditions before using the Software or the Service. Please read them carefully, and ensure that any other users to read them carefully.
The Licensor recommends that you print and retain copies of this Agreement as amended from time to time for your records, and that you keep abreast of any modifications to this Agreement from time to time by reference to the Software or to the Licensor's website where you may find the latest version of this Agreement.
4 AUTHORITY & ACKNOWLEDGEMENT & ASSERTION
The Licensor warrants that it is authorized to enter into this Agreement in respect of the Software and the Service for the purpose of offering the Service to Subscribers.
By using the Software or the Service, you (and if appropriate, the Subscriber) assert that any information which you give in relation to the use thereof is correct, and you assert that either you have the legal capacity to enter into this Agreement (including that you have attained the age of majority in the state or country in which you live), or that you are using the Software and or the Service with the approval of and under the supervision and direction of someone who has the legal capacity to enter into this Agreement, and that party is responsible for your use of the Software and the Service.
By using the Service or the Software, the Subscriber acknowledges that the Subscriber accepts this Agreement without modification by the Subscriber in any way.
The Subscriber acknowledges that it is essential to this Agreement that this Agreement contains disclaimers of warranties by the Licensor, and limited liability upon the Licensor and the Licensor's Associates, and limited remedies available to the Subscriber, and an indemnity by the Subscriber to the Licensor and the Licensor's Associates in respect of any further liability beyond the limited remedies.
5 PARTIES
This Agreement is between you (you are the Subscriber) and the Licensor for the use of the Service.
If the Subscriber allows any other person or corporation (Designated Users) to use the Service, the Subscriber is wholly responsible for such Designated User's conduct as if such conduct were the Subscriber's conduct.
The Subscriber is responsible for ensuring that any and all users of the Service (whether Designated Users or not) abide by the terms of this Subscription Agreement.
You and any other users of the Software and or the Service agree that this Agreement binds you, your Designated Users, and any other person who uses the Software or the Service through your account with the Licensor.
6 LICENSE TO USE SOFTWARE, SUBSCRIPTION TO THE SERVICE
Pursuant to this Agreement, as long as you comply with the terms of this Agreement, you (the Subscriber) are hereby granted a license to use the Software. The Software is only licensed to you, and is not sold to you.
The Licensor hereby grants, and you hereby accept, a non-assignable, non-exclusive, non-transferable, non-sub-licensable, limited license to use the Software in the manner in which the Software is intended to be used, and on the basis of this Agreement, for the term for which you hold either a free trial subscription to the Service or a paid up subscription to the Service, after which you acknowledge that you have no right to use the Service or the Software and after which you agree to uninstall the Software.
If you do not continue to abide by the terms of this Agreement you acknowledge that you have no right to use the Service or the Software and you agree to uninstall the Software forthwith upon your not continuing to abide by the terms of this Agreement.
7 PURPOSE OF THE SERVICE
The purpose of the Service is to provide to the Subscriber a backup of files nominated by the Subscriber to a safe offsite location from which such files can be restored in the event of those files being unavailable on the Subscriber's computer for any reason (such as theft, fire, hard disc failure, or for any other reason).
The Service is designed to operate in the early hours of the morning when its use of your computer's resources is least likely to impact on your use of the computer, and when internet bandwidth availability is most likely to be at its maximum.
To minimize the use of your computer's resources and of your internet bandwidth, the Software has been designed to only backup the files which you have changed since your last backup, and to only backup the parts of each file which you have changed.
The Service can also be used for more frequent backup (than daily backup) by use of the "backup now" function of the Software.
8 THE SERVICE
The Service is made available by the Licensor to the Subscriber during the period of any free trial of the Service, and for the period the Subscriber maintains a paid subscription to the Service.
Use of the Service consists of a Subscriber to the Service electronically transmitting encrypted computer data (Data) via the Software over the Internet into a location (the Location) maintained by the Licensor or the Licensor's Associates, and of the storing of that encrypted computer Data at that Location, and should retrieval of that Data be required, of the Subscriber retrieving a copy of the said Data.
The Subscriber acknowledges that for backups to occur on a daily automatic basis as intended, the Subscriber's computer must be turned on, powered up, and connected to the internet.
Prior to the transmission of the Subscriber's data, the data is encrypted, and is stored by the Licensor or the Licensor's Associates as encrypted data (Data). During recovery, the Data is de-encrypted by the Software to restore the Subscriber's data to the Subscriber's computer.
9 THE SOFTWARE
The Service is provided through the Software which is installed on your computer. From time to time the Licensor may modify the Software through the auto-update feature of the Software which automatically upgrades the Software for the purpose of thereby enhancing the Service.
Your continued use of the Service constitutes your acceptance of automatic updates of the Software.
Reference to the Software includes reference to all electronic material made available to the Subscriber at any time, and includes all associated software, associated modules, user documentation, user manuals, installation guides, training materials, and if any, to a new release or update, being a subsequent release or update of a component of the Software which provides either one or more of the following modifications to the Software: being a patch, fix, modification, error correction, or enhanced functionality of the Software.
To uninstall the Software, use the Windows Add/Remove Programs functionality or see our website for additional information: http://www.mybackupdrive.com/support/#uninstall
10 PAYMENT
The Subscriber is not required to pay for downloading or installing the Software, instead a fee-paying Subscriber pays for the use of the Service.
Upon the Subscriber completing installation of the Software, the Subscriber shall be allowed to use the Service free of charge for the number of days indicated when the Subscriber downloaded the Software (hereinafter referred to as the "Evaluation Period").
After the expiry of the Evaluation Period, if the Subscriber continues to use the Service, the Subscriber shall automatically be charged all applicable fees for the Service based upon the subscription rate for the subscription selected by the Subscriber.
Charges for the use of the Service are based on the size of the account selected by the Subscriber, and on the duration of the Service selected by the Subscriber.
Unless otherwise agreed, the Subscriber shall pay in advance any subscription or fees and other charges incurred by the Subscriber for the use of the Service at the subscription rates in effect for the billing period in which those charges are incurred.
For situations where credit card payment is utilized, the Subscriber shall maintain a current authorization for the Licensor to debit the Subscriber's Credit Card account for such amounts as become due from time to time, so that the Subscriber can continue a paid up subscription to the Service.
For situations where the Subscriber's Credit Card issuing financial institution has been notified of a payment dispute, the Subscriber agrees that proof by the Licensor of Service usage by the Subscriber constitutes the Subscriber's authorization to submit a payment request to the Credit Card issuing financial institution.
The Subscriber shall pay all applicable taxes, if any, related to use of the Service by the Subscriber or the Subscriber's Designated Users.
For Subscribers who do not hold credit cards, the Licensor may choose to bill the Subscriber through an invoice, in which case full payment for invoices issued in any given month must be received by the Licensor within the number of days stated on the invoice from the date shown on the invoice, failing which the Service may be suspended or terminated. The Subscriber accepts full responsibility for proactively ensuring that fees are paid within the stated timeframes, and if an invoice is not received when due, the Subscriber is responsible for following up with the Licensor to ensure that payment is made to maintain the currency of the subscription. At the discretion of the Licensor, unpaid invoices are subject to interest at the rate of 1.0% per month on any outstanding balance, plus all expenses of collection, if any.
If the Subscriber's account is not paid in accordance with the agreed payment terms (which generally means for fee-paying subscriptions that the subscription is paid in advance) for any period, the Licensor may, in addition to any other rights, at its sole discretion and without notice to the Subscriber:
(a) suspend the obligation of the Licensor to perform under this Agreement, and deny the Subscriber's and the Subscriber's Designated Users' access to and use of the Service until the Subscriber's subscription is back in good standing, or
(b) terminate the Subscriber's and the Subscriber's Designated Users' access to and use of the Service.
From time to time the Licensor may offer special promotional or free trial offers at the Licensor's discretion, and the Licensor reserves the right to discontinue or modify those offers at the Licensor's sole discretion. Any free trial offer entitles a new Subscriber to a one-time free trial usage of the Service. Free trial terms may vary from offer to offer. At the end of the free trial period, if you continue to use the Service, you may be automatically subscribed, and if so, if you have provided credit card details to the Licensor, the Licensor may bill your credit card for the fees to the Service plan selected by the Subscriber. If the Subscriber wishes to terminate the Service at the end of the free trial period, and does not want to subscribe to the Service, the Subscriber must cancel the free trial Service before the end of the free trial period. To cancel your Service, follow the instructions set out in the Software.
11 AUTOMATIC RENEWAL
If you continue using the Service you agree to permit the Licensor to automatically renew your subscription to the Service by charging the credit card number which you have provided to the Licensor. In that event your subscription will be automatically renewed within fourteen days prior to the expiration of your subscription at the then current price.
If you do not want automatic renewal to occur, you must provide the Licensor with 14 days written notice as set out hereunder.
12 CANCELLATION AND TERMINATION
The Subscriber may cancel a free trial Service at any time during the free trial period on one day's written notice given by the Subscriber by email to the Licensor at the Licensor's email address.
The Subscriber may cancel a fee-paying Service upon fourteen (14) days written notice given by the Subscriber by email to the Licensor at the Licensor's email address; and if the Subscriber cancels the Service without providing the Licensor with fourteen (14) days written notice of the Subscriber's intention to terminate use of the Service, the Subscriber must pay for that period whether the Subscriber uses it or not.
In the event of the Subscriber canceling the Service, the Licensor will not provide a refund for the unused portion of the Service, if any, paid in advance by the Subscriber.
The Licensor may cancel the Subscriber's Service with or without cause upon thirty (30) day's prior written notice given by the Licensor by at least two emails sent to the Subscriber at the Subscriber's address as shown in the Subscriber's account details.
Following the date of cancellation, the Subscriber's access to any of the Subscriber's data stored through the Service may be permanently terminated.
13 PERMITTED USES
The Subscriber is hereby authorized to use the Service for a maximum of the storage capacity (specified in megabytes) as paid for by the Subscriber to the Licensor according to the subscription rates published by the Licensor from time to time.
If the Subscriber requires additional storage, the Subscriber may purchase additional subscriptions for services, or may change the Subscriber's account size by contacting the Licensor and agreeing to pay a higher subscription rate.
The Subscriber may use the Service on more than one computer, and may install the Software on the Subscriber's computer, or on multiple computers, or on a network of computers.
14 USES NOT PERMITTED
You (the Subscriber) may not assign nor grant sub-licenses or sub-subscriptions or leases in relation to the Software or the Service, nor may you sell, lend, license, rent, or in any manner distribute the Software or make the Software available to other parties for value or otherwise.
The Subscriber may not use the Software or the Service in any manner which harms any party in any way whatsoever, or in a manner which infringes on the intellectual property rights of any third party or of the Licensor or of the Licensor's Associates.
The Subscriber agrees not to (nor to assist any third party to do so directly or indirectly or in any manner whatsoever) reverse engineer, disassemble, decompile, revise, translate, retarget, redevelop, re-engineer, use software evolution or synchronized refinement or forward engineering in relation to the Software, or any part of the Software, or in any way derive or attempt to derive any source code from the Software or from any part of the Software.
The Subscriber agrees not to (nor to assist any third party to do so directly or indirectly or in any manner whatsoever) modify, port, translate, or create derivative works of the Software or the Service nor to undertake or disclose the results of any performance tests or qualitative analysis on the Software or the Service to any third party without the prior written consent of the Licensor.
The Subscriber may not use the Software or the Service in any manner which is illegal.
15 ILLEGAL USE
The Subscriber shall not use the Service for storage, possession, or transmission of any information, (including without limitation, stolen materials, obscene materials, or child pornography) the possession, creation, or transmission of which violates any law, statute, ordinance or regulation, or is defamatory, libelous, unlawfully threatening, or unlawfully harassing, is obscene, or indecent in violation of applicable law, or to propagate any viruses, worms, Trojans, or other programming intended to damage any computer, computer system, or computer data, or to use the Software or the Service in any manner that may injure any party or property in any way whatsoever.
16 INTELLECTUAL PROPERTY
The Software and information provided through the Software and in relation to the Service is protected by copyright and other intellectual laws and treaties. The Licensor or its suppliers or the Licensor's Associates own the title, copyright, and other intellectual property rights (Intellectual Property rights) associated with the Software and the Service. All rights not specifically granted to you the Subscriber are reserved. By subscribing to the Service, you are being granted a right to use the Software on the basis set out herein, but you are not acquiring the Software or any rights other than those set out herein.
All intellectual property rights in and to the Software shall remain the property of the Licensor and or the Licensor's suppliers and or the Licensor's Associates as applicable.
Intellectual property includes, but is not limited to, patents, inventions, invention disclosures, 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.
17 SIGNUP INFORMATION AND PRIVACY POLICY
All use by the Licensor of personal information collected from the Subscriber through, or associated with the Subscriber's subscription to the Service shall be undertaken in accordance with the Licensor's privacy policy which will be in accordance with any applicable privacy legislation from time to time.
To use the Service, you must provide certain limited information about you (the Subscriber Details) at the sign-up stage, and you agree that such Subscriber Details will be current, complete, and accurate, and that through the Software, you will maintain and update the Subscriber Details in the Subscriber details section from time to time to keep those Subscriber Details current, complete, and accurate. The Subscriber shall provide the Licensor with a current physical (street) address and Internet e-mail address for future communications and shall notify the Licensor of any change of address.
The Subscriber Details may include credit card information relating to you. Upon the Subscriber supplying credit card information to the Licensor to pay for a subscription to the Service, the Subscriber hereby grants permission to the Licensor to verify the Subscriber's personal information, including all information pertaining to the credit card with the appropriate credit agency and/or other relevant entity.
If the Licensor discovers that any of your Subscriber Details is inaccurate, incomplete, or not current, including in particular, the credit card information, the Licensor may terminate your right to access to the Service after 30 day's notice given to you by at least two emails sent to you at the most recent email address provided by you to the Licensor.
By entering into this Agreement you consent to the Licensor collecting and retaining information about you, including your name, your address, your email address, and your credit card information on the basis that such information is used only in relation to the Service, to analyzing data relating to the Service, to providing you with information relating to the Service, and to your obligations relating to the Service and this Agreement.
From time to time the Licensor may publish on its website its current Privacy Policy, and if so, that publication thereof is provided to you as a courtesy for informational purposes only related to the Licensor's intent at the time of posting that Privacy Policy. From time to time the Licensor may amend its Privacy Policy to comply with changing laws or otherwise. The information in any such Privacy Policy is the then current statement of intention of the Licensor in relation to its Privacy Policy, but to the maximum extent allowed by law, the Licensor hereby disclaims the content of any such published Privacy Policy, and disavows any representations, covenants, and warranties contained in any such Privacy Policy.
18 ENCRYPTION AND CONFIDENTIALITY
Your data stored on the Service is encrypted by the Software with the intention of protecting the privacy of that data which is accessible only to you and other users who have access to your username and password.
The Licensor has named as UltraSafe mode, the situation in which the Subscriber does not provide the Licensor with the Subscriber's password.
The Licensor warrants that in UltraSafe mode, the Subscriber's data is encrypted in a manner which prevents the Licensor (and the Licensor's Associates) from being able to interpret or read the Subscriber's data.
Accordingly, in UltraSafe mode, the Licensor shall not have any capacity, responsibility, or obligation to the Subscriber, the Subscriber's Designated Users, or other users of the Service, or to any other party or government body or authority, to monitor, supervise, or oversee the contents of files stored through the Service.
19 SUBSCRIBER RESPONSIBLE FOR DATA AND PASSWORDS
The Subscriber is solely responsible for maintaining the confidentiality of passwords, including restricting the use of the Subscriber's password by the Subscriber's Designated Users. The Subscriber shall be responsible for all use of the Service accessed through the Subscriber's password.
In UltraSafe mode, the Licensor does not know the Subscriber's password, and accordingly cannot be responsible for providing the Subscriber with a password in the event of a forgotten password. Without the correct password, the Subscriber's data will remain encrypted and inaccessible.
20 SUBSCRIBER RESPONSIBILITY FOR EQUIPMENT
The Subscriber is responsible for and must provide all telephone and computer and other equipment and services necessary to access the Service.
The Subscriber acknowledges that for backups to occur through the Service, the Subscriber's computer must be turned on, powered up, and connected to the Internet.
The Subscriber acknowledges that the Licensor does not warrant that the Service will function satisfactorily on all computer systems or in conjunction with all computer operating systems, or on all combinations of computers and operating systems.
The Subscriber acknowledges that the Subscriber's computer system and operating system may not be compatible with the Software or the Service, and or that the functionality and or features and or performance of the Software and or the Service may not suit the Subscriber, and the Subscriber adopts full responsibility for all such matters.
21 SUBSCRIBER BEARS ALL RISK
The Subscriber expressly agrees that use of the Software and of the Service is at the Subscriber's sole risk, and the Subscriber expressly adopts all responsibility for, and risk associated with, the satisfactory or unsatisfactory performance of the Software and the Service. The Subscriber expressly acknowledges and agrees that the Subscriber's bearing all risk as referred to herein is an essential part of this Agreement and is an essential factor in establishing the price of the Service, and acknowledges that the Subscriber's bearing all risk is an inherent part of the Service and of this Agreement and is inseparable from the Service and unseverable from this Agreement.
In particular, the Subscriber acknowledges that from time to time, the Service may fail or be interrupted for a period for any number of reasons (including for example, without limitation, through power interruption, or hard disc failure, or for periodic system maintenance whether scheduled or unscheduled and whether or not the Subscriber was given advance notice of such maintenance, or for technical failure of the Software or telecommunications infrastructure, or delay or disruption attributable to viruses, denial of service attacks, increased or fluctuating demand, or for any other reason) and that the Software may function imperfectly or malfunction, and accordingly the Subscriber acknowledges that it is the Subscriber's responsibility to adopt the level of backup utilities, methods, and services most appropriate to the Subscriber's needs for backup.
22 SUBSCRIBER RESPONSIBILITY FOR BACKUP NEEDS AND BEST PRACTICE
The Subscriber acknowledges that the Service may not meet the Subscriber's requirements which are personal to the Subscriber's circumstances and expectations.
The Subscriber will maintain a primary electronic file of all materials stored through the Service and acknowledges that the Subscriber should not utilize the Service as a substitute for primary electronic file maintenance.
The Subscriber acknowledges that the Subscriber is responsible for keeping abreast of best practice in relation to the backing up of computer files, and of assessing the Subscriber's needs for backup, and if appropriate to the Subscriber's needs, the Subscriber is responsible for using multiple methods of backup. (For example, if appropriate to the Subscriber's needs, the Subscriber could maintain two Services which have scheduled backups commencing twelve hours apart, or the Service could be just one of a multitude of methods which the Subscriber uses to backup the Subscriber's computer files.)
The Subscriber acknowledges that the Licensor offers the Service without any advice in relation to any matter associated with the Service, or in relation to backup best practice, or to any other matter whatsoever.
23 NO WARRANTY BY LICENSOR EXCEPT STATUTORY WARRANTIES
The Subscriber expressly acknowledges and agrees that the limitation of warranty as referred to herein is an essential part of this Agreement and is an essential factor in establishing the price of the Service, and acknowledges that the Subscriber accepts the limitation of warranty as an inherent part of the Service and as inseparable from the Service.
The Licensor has offered the Service to the Subscriber with the intention to provide a valuable service to the Subscriber, but the Licensor does not warrant that the Service will meet the Subscriber's expectations or requirements.
The Licensor does not warrant that the Service will be compatible with all computer hardware or computer software or operating systems or that it will function satisfactorily on all computer systems or in conjunction with all computer operating systems or with all computer data, or on all combinations of computers and operating systems. In particular, the Licensor does not warrant that the Software or the Service will function satisfactorily on the Subscriber's computer and or operating system and or internet service.
Nor does the Licensor make any representations about the performance or lack of performance of the Software or the Service, either express or implied.
Any disclaimer of warranty by the Licensor set out herein also applies to the Licensor's Associates.
Neither the Licensor nor the Licensor's Associates warrant that the Service will be uninterrupted or that performance of the Software or the Service will be error-free or free of viruses or other harmful components, or that defects (if any) in the Service or the Software will be corrected in a timely manner or at all even if such defects are advised to the Licensor by the Subscriber or by any other party.
To the maximum extent permitted by applicable law, the Service and the Software and any information provided with it are provided without warranty of any kind whatsoever either express or implied, including, but not limited to implied warranties of merchantability and warranties for fitness for a particular purpose; nor does the Licensor or the Licensor's Associates make any warranty as to the results to be obtained from use of the Service or the Software.
The Service and the Software are made available on an "as available" and "as is" basis and with all inherent faults and imperfections inseparably included, and without warranties of any kind whatsoever, either express or implied, including but not limited to the Licensor and the Licensor's Associates not providing warranties of title, or implied warranties of merchantability, or non-infringement, or fitness for a particular purpose, or of reliability of availability, or of quiet enjoyment, or of accuracy or completeness of responses, or of lack of negligence, and the provision of or failure to provide support or other services; other than those warranties which are implied by and are incapable of exclusion, restriction, or modification under the laws applicable to this Agreement.
No oral or other representation by the Licensor or by any party or representative of any party associated with the Licensor (or the Licensor's Associates) shall create a warranty or obligation which is binding upon the Licensor or the Licensor's Associates, except for the obligations set out herein.
24 REPRESENTATIONS, ADVERTISING, AND PUFFERY
The parties acknowledge that the purpose of any advertising or other representations relating to the Software or the Service is to make potential users (including the Subscriber) aware of the Software and the Service, and to elicit the Subscriber's interest in using the Software and subscribing to the Service.
The parties acknowledge and agree that any claims in any advertising or any representation whatsoever which go beyond a strict statement of facts about the Software and or the Service shall be deemed by the parties as constituting puffery (which is a legal term which relates to advertising which makes claims beyond a strict statement of facts) which the Subscriber accepts as a valuable method of eliciting the Subscriber's interest in the Software and the Service.
The Subscriber acknowledges that the Subscriber's sole reaction to the advertising and or any other representations (including any puffery) has been to trial the Software and the Service during the Evaluation Period, and that the Subscriber has not agreed to becoming a fee-paying subscriber based upon any advertising or any other representation (including any puffery) relating to the Software or the Service.
If the Subscriber pays a fee or agrees to pay a fee for the Service, the Subscriber acknowledges that the Subscriber has not acted on the advertising or any other representation (including any puffery) in deciding to pay for the Service; but rather that the Subscriber has decided to subscribe to the Service based upon this Agreement and the Subscriber's own assessment of the Service during the (free trial) Evaluation Period; or alternatively the Subscriber has had the opportunity to assess the Software and the Service during the Evaluation Period , and has abandoned that opportunity at the Subscriber's sole risk.
The Subscriber acknowledges that the Subscriber's use of the Software and the Service is based only on the claims made by the Licensor in this Agreement and on the Subscriber's own assessment, and not upon any advertising or other representation (including any puffery).
In particular, the Subscriber acknowledges that advertising traditionally attempts to show the most favourable aspects of products or services, and that advertising sometimes idealizes products and services, and that advertising usually does not draw attention to weaknesses or deficiencies in a product or service, and the Subscriber agrees not to take issue with any puffery contained in any advertising or other representation.
Furthermore, the Subscriber acknowledges that almost all products are imperfect in some way, and that software is well known to often contain bugs, and the Subscriber accepts the possibility or likelihood that there may be bugs within the Software and imperfections in the Service.
25 FORCE MAJEURE
The Licensor and or the Licensor's Associates shall not be liable for any failure or delay in performing services or any other obligations under this Agreement, nor for any damages suffered by the Subscriber by reason of such failure or delay, which is directly or indirectly caused by strike, riot, natural catastrophe or other act of God, or any other cause beyond the Licensor's reasonable control.
26 LICENSOR'S LIMITED LIABILITY
The Subscriber expressly acknowledges and agrees that the limitation of liability referred to herein is an essential part of this Agreement and is an essential factor in establishing the price of the Service, and acknowledges that the Subscriber accepts the limitation of liability as an inherent part of the Service and as inseparable from the Service.
Neither the Licensor, nor the Licensor's Associates, nor any other party involved in creating, delivering, or maintaining the Service and the Software shall be liable for any direct, indirect, incidental, special, punitive, exemplary, or consequential damages of any kind whatsoever (including, but not limited to, and without any limitation whatsoever, damages for loss of profits or of confidential or other information, for the cost of recreation of computer files or of data, for the value of any lost computer files or data, or for business interruption, work stoppage, repair costs, for injury of any kind, for personal injury, for loss of privacy, for failure to meet any duty including of good faith or of reasonable care, for breach of any statutory responsibilities or duties, for negligence, and any other pecuniary or other loss whatsoever) arising directly or indirectly out of use of the Service or the Software or inability to use the Service or the Software or out of any breach of any warranty or of any duty, even if such damages arise from the breach of warranty or duty, or from negligence or misrepresentation, or breach of contract by the Licensor or by the Licensor's Associates, and even if the Subscriber or any other party has advised the Licensor of the possibility of such damages.
Should the Service be interrupted or fail, or the Software prove to be defective, or any information provided in relation to the Service or the Software prove to be incorrect, neither the Licensor nor the Licensor's Associates shall be liable for any pecuniary damages in excess of the greater of the amount of US$1-00 (one United States dollar) and an amount equal to the subscription price of this Service paid by the Subscriber within the period of one month (the Monthly Cost) prior to any claim made by the Subscriber in relation to the Software or the Service, and the Subscriber, and if applicable, any other user, hereby exchanges all other rights to which the Subscriber or that other user is or may become entitled for the right to receive the amount referred to herein.
Furthermore, in any event whatsoever which leads to any consequential damages or any direct damages or any indirect damages howsoever arising, neither the Licensor nor the Licensor's Associates shall be liable for any amount over and above the greater of US$1-00 and the Monthly Cost, and the Subscriber, and if applicable, any other user, hereby exchanges all other rights to which the Subscriber or such other user is or may become entitled for the right to receive the amount referred to herein.
In no event will the liability for any claim against the Licensor or the Licensor's Associates, whether in contract, tort, or on any other theory or ground of liability, exceed the greater of the amount of US$1-00 (one United States Dollar) and the amount paid by the Subscriber, if any, for the use of the Service for the period of one month preceding the event forming the basis of the claim, and the Subscriber and any other user and any party claiming through the Subscriber or otherwise hereby exchanges all other rights to which the Subscriber or that party is or may become entitled for the right to receive the amount referred to herein, and that right is the Subscriber's (and any other user's) sole and exclusive remedy pursuant to this Agreement.
27 SUBSCRIBER'S SOLE AND EXCLUSIVE REMEDY
Accordingly, the entire liability of the Licensor, and of the Licensor's Associates, and the sole and exclusive remedy of the Subscriber's (and of any other user or other party associated with or claiming through the Subscriber) shall be receipt from the Licensor of the greater of the amount of US$1-00 (one United States dollar) and a refund of the amount paid by the Subscriber, if any, for the use of the Service for the period of one month preceding the event forming the basis of any claim, and the Subscriber (and any other user or other party associated with or claiming through the Subscriber) hereby exchanges all other rights to which the Subscriber (or that party) is or may become entitled for the right to receive the amount referred to herein.
28 SUBSCRIBER'S INDEMNITY TO LICENSOR
Except in respect of the Licensor's (or the Licensor's Associates) obligation to pay to the Subscriber the greater of the amount of US$1-00 and the Monthly Cost as provided herein, the Subscriber and any user of the Software or the Service agrees to indemnify and hold harmless the Licensor and the Licensor's Associates against and in respect of any and all liability, however arising whether directly or indirectly or in any manner whatsoever (without limiting the generality thereof including any and all claims, costs, damages, losses, liabilities, and expenses (including attorneys' fees and legal costs)) relating to this Agreement and to the use of the Software and the Service and the Subscriber's account, including use thereof by the Subscriber, or the Subscriber's Designated Users, or by any person or corporation who uses the Subscriber's Service for any reason whatsoever, and whether or not such use was with or without the authority or permission of the Subscriber.
29 BACKUP OF SUBSCRIBER'S FILES
The Licensor or the Licensor's Associates (including the Licensor's nominated data centre) may make copies of all data stored as part of the backup and recovery of files on servers utilized in connection with the Service. The Licensor is not obliged to archive such copies and will utilize them only for the Licensor's backup purposes in connection with providing the Service. Such copies will not be accessible to the Subscriber except through the normal operation of the Service.
30 NO BAILMENT
With respect to the Subscriber's data which is backed up through the Service and stored as encrypted data (Data) by the Licensor or the Licensor's Associates, apart from the obligations specifically set out in this Agreement, neither the Licensor nor the Licensor's Associates have any obligation to the Subscriber or the Subscriber's Designated Users or any other users in relation to access to the Data.
The parties acknowledge that the Subscriber owns or controls the Subscriber's computer and the data stored on it; and that, in turn, the Licensor or the Licensor's Associates owns or controls the server and hard discs upon which is stored the encrypted Data which relates to the Subscriber's data; and that the Data is actually part of the hard disc on that server; and the Subscriber acknowledges that the Subscriber's only interest in that encrypted Data is to obtain a copy thereof from time to time during the currency of the Subscriber's subscription.
The parties acknowledge that the term "bailment" refers to a set of legal rights which relate to goods which are in the possession of another, or to the transfer of possession of property, or to the return to its owner of property which for any reason may be in the possession of another party.
The parties acknowledge that at all times during the currency of the Service, the Licensor and or the Licensor's Associates will never hold copies of the Subscriber's data, and at most will only hold Data (encrypted data) which relates to the Subscriber's data; and that at no time during the currency of the Service will there be any property (including data or Data) of the Subscriber's (or of the Subscriber's Designated Users or any other users) in the possession of the Licensor or the Licensor's Associates, and that no bailment or similar obligation of any kind whatsoever is created between the Subscriber (and/or the Subscriber's Designated Users or other users) on the one hand, and the Licensor and or the Licensor's Associates on the other hand.
31 GOVERNING LAW
This Agreement shall be construed in accordance with the laws in force at the Licensor's Address, and the Subscriber hereby irrevocably consents to the exclusive jurisdiction of the appropriate courts in that jurisdiction.
If any legal action is brought by the Licensor regarding any breach of this Subscription Agreement or in any other way to enforce this Agreement, in addition to any other relief, the Licensor shall be entitled to recover, if applicable, lost profits or lost sales of the Software or the Service, other consequential damages, reasonable attorney fees, court costs, and all other expenses of litigation being expenses relating thereto directly or indirectly or in any manner whatsoever.
If the address of the Subscriber is in a different country from that of the Licensor, the parties expressly agree that the United Nations Convention on Contracts for the International Sale of Goods shall not apply to this Agreement.
32 SEVERABILITY
This Agreement shall, so far as possible, be interpreted and construed so as not to be invalid, illegal, or unenforceable in any respect, but if a provision, on its true interpretation or construction is held to be illegal, invalid, or unenforceable; then that provision shall, so far as possible, be read down to the extent that it may be necessary to ensure that it is not illegal, invalid, or unenforceable and as may be reasonable in all the circumstances so as to give it a valid operation.
If at any time or from time to time one or more of the provisions in this Agreement shall be held by a court of competent jurisdiction to be invalid, unenforceable, or illegal, or if for any reason one or more of the provisions of this Agreement becomes invalid, unenforceable, or illegal, and that provision cannot be read down as set out above, then the invalid, unenforceable, or illegal provision will be deemed superseded; and
(a) If modification of the superseded provision is practicable, the provision will be modified by a valid, enforceable, and legal provision that most closely matches the intent of the original provision, and such modification will be treated as if it were rectification (correction) of the Agreement ab initio (from the beginning); and
(b) If modification of the superseded provision is not practicable, the superseded provision will be deemed eliminated; and
In either case, the remaining provisions of this Agreement shall nevertheless continue to be valid and enforceable and shall remain in full force and effect and the Agreement shall remain in full force and effect in accordance with its terms as modified by such modification or deletion.
33 SURVIVAL
All obligations of and restrictions on the Subscriber and other users of the Service shall survive any termination of this Agreement, but this does not confer any right to use the Software or the Service following termination, and rights to use the Software and the Service are cancelled upon termination of this Agreement.
34 ASSIGNMENT
The Subscriber's right to use the Software and the Service is not transferable.
The Subscriber may not assign this Agreement or the Subscriber's interest in any matter which arises pursuant to this Agreement, in whole or in part, or assign, or transfer the Subscriber's rights to any other party in any manner whatsoever.
The Licensor may assign this Agreement or the Licensor's interest in any matter which arises pursuant to this Agreement, in whole or in part, at the Licensor's sole discretion.
35 SUBSCRIBER HAS LIMITED TIME TO BRING A CLAIM
The Subscriber agrees to commence any claim pursuant to this Agreement within one year of the date on which the cause of action accrues, failing which the cause of action is permanently barred, and the Subscriber will not bring any action on any ground whatsoever thereafter.
36 WAIVER
If either the Licensor or the Subscriber 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.
37 LICENSOR CAN OBTAIN INJUNCTIVE RELIEF
The Subscriber acknowledges that breach by the Subscriber of this Agreement may cause irreparable harm to the Licensor and the Subscriber agrees that the Licensor shall be entitled to injunctive relief in the event of such a breach.
38 MODIFICATION OF SUBSCRIPTION AGREEMENT
The Subscriber acknowledges that the Subscriber's use of the Service is subject to limitations established by the Licensor from time to time, and to modification of the Agreement, and that the Licensor may discontinue or revise any aspects of the Software or the Service from time to time.
The Licensor reserves the right to modify the terms and conditions of this Agreement from time to time, at its sole discretion and without advance notice, and the Subscriber acknowledges the Licensor's rights in these respects and agrees thereafter to be bound by the modified Agreement, whether or not the Subscriber has read those modified terms and conditions.
The Subscriber acknowledges that such modifications may include modifications to the various charges applicable to various account sizes from time to time.
The Licensor will notify the Subscriber of the modified terms and conditions of this Agreement either by an email communication to the Subscriber at the email address of the Subscriber as shown in the Subscriber's Details, or by publication on the Licensor's web site, or by modification of these terms and conditions through the auto-update feature of the Software, or through more than one of these methods of communication.
The Subscriber acknowledges that the Subscriber is responsible for regularly reviewing the current terms and conditions of the Agreement, including by reviewing the Agreement on the Licensor's website and by reviewing the Agreement in the Software, and the Subscriber's continued use of the Service shall be deemed to be proof of the Subscriber's acceptance of and agreement to such modifications to the terms and conditions of the Agreement from time to time.
The Subscriber has no authority to modify this Agreement. No modification of this Agreement by the Licensor shall be binding upon either party unless made in writing and communicated to the Subscriber as set out herein. No oral representation by any party or any representative of any party will have any capacity to modify this Agreement.
39 NO CHARGE FOR AUTO-UPDATE UPGRADES
The Licensor asserts, and the Subscriber acknowledges, that the Licensor intends to amend the Software and the Service through upgrades from time to time, and that the parties intend that such upgrades, if any, will be made available to the Subscriber for no charge through the auto-update feature of the Software.
40 SUBSCRIBER REPORTING PROBLEMS TO THE LICENSOR
To assist the Licensor to make upgrades which are intended to be valuable to Subscribers, the Licensor requests Subscribers to make suggestions for improvements to the Software and the Service, and also requests the Subscriber to report to the Licensor any problems which the Subscriber has experienced with the Software or the Service.
In regard to improving the Software and the Service, the parties acknowledge the value to each party of such reports.
A Subscriber who is using the Software and or the Service without having paid a fee for the Service, whether during any free trial period, or during an Evaluation Period prior to commencing a paid subscription, or pursuant to any beta release, or otherwise, hereby agrees that such use shall be deemed to be Evaluation Use, during which use the Subscriber evaluates the suitability of the Software and or the Service for the Subscriber's needs.
From time to time during any period of Evaluation Use, the Subscriber may report to the Licensor about the Software and the Service, and at the end of the Evaluation period, the Subscriber hereby agrees to report the results of the Subscriber's evaluation of the Software and the Service, by email sent to the Licensor at the Licensor's Email Address address shown herein. If the Subscriber does not make any report to the Licensor of any problems, then the absence of any adverse report will be agreed by the parties as constituting a positive report from the Subscriber to the Licensor, and such lack of a negative report will be deemed to be a positive report about the Software and the Service and will satisfy the Subscriber's obligation to report to the Licensor.
41 CONSIDERATION
The parties acknowledge that for this Agreement to be legally binding, there must be mutual consideration which is valuable to each party: that is, there must be a payment or service flowing from one party to the other, and vice versa.
In this Agreement, the consideration flowing from the Licensor to the Subscriber is the provision of the Service or the offer to provide the Service.
For a Subscriber who has paid or has agreed to pay a subscription fee, the consideration is that fee or that agreement to pay a fee.
For a Subscriber who is using the Software or the Service as Evaluation Use (i.e. on any free trial basis, whether during an Evaluation Period prior to commencing a paid subscription, or during an evaluation of a beta release, or otherwise) the Subscriber hereby agrees to report the result of the Subscriber's evaluation by email to the Licensor, and the agreement to report that result constitutes valuable consideration given by the Subscriber to the Licensor. If the Subscriber does not make any report to the Licensor of any problems, then the absence of any adverse report will be agreed by the parties as constituting a positive report, and such lack of a negative report will be deemed to be a positive report about the Software and the Service, and the Subscriber's report or the Subscriber's deemed report will be deemed to constitute valuable consideration in relation to this Agreement.
In the event that a Subscriber or any other party (being a Designated User or other user or other party) makes a claim against the Licensor or the Licensor's Associates in relation to the Software or the Service in any manner whatsoever, then the grounds upon which that claim is based will provide information to the Licensor which will, for the purposes of this Agreement, constitute a report to the Licensor which is valuable to the Licensor, and that claim will be deemed to be a report which constitutes valuable consideration in terms of this Agreement.
42 ENTIRE AGREEMENT
Except as expressly stated herein, the terms and conditions collectively comprising this Agreement together with any documents specified herein as being relevant hereto, and as modified by the Licensor from time to time or as set out herein, constitutes the entire and only agreement between the Licensor and the Subscriber with respect to the Service and the Software and supersedes all other communications and agreements with regard to the subject matter hereof.
In the event of a conflict between this Agreement and any other documentation referred to herein or not referred to herein, the text of this Agreement takes precedence. In particular, the Subscriber acknowledges that any statement in any other material (including advertisements or other representations of any kind whatsoever) which conflicts with this Agreement will be read as statements of intention relating to how the parties want the Software and the Service to perform, and will be read as being not binding upon the Licensor and the Licensor's Associates so as to be consistent with this Agreement.
43 NON-CIRCUMVENTION
The parties will not do or permit or encourage anything to be done (directly or indirectly or in any way whatsoever, by themselves through their personnel or Associates or otherwise) which would invalidate or circumvent this Agreement or any part of this Agreement, and in particular, those parts of the Agreement which afford protection to the Licensor and the Licensor's Associates in respect of Intellectual Property rights in and associated with the Software and the Service.
In the interpretation of the Agreement, the interpretation which gives maximum effect to the fundamental intention to protect the Licensor's Associates in respect of Intellectual Property rights in and associated with the Software and the Service will be given maximum weight, and will be read up to thereby afford maximum protection, and conversely, any matter in the Agreement which may reduce the protection afforded in respect of Intellectual Property rights will be read down.
44 AGREEMENT TO BE LEGALLY BINDING
The parties acknowledge that they intend to be legally bound by this Agreement, and have entered into this Agreement in full knowledge of the legal ramifications of this Agreement.
(If in doubt about the legal consequences of entering into this Agreement, potential users of the Software or the Service should seek legal advice before entering into the Agreement, and before using the Software or the Service.)
