-
LICENSE: The software covered by this Agreement is the software
program and documentation accompanying this License, whether on disk, in
read only memory, on any other media or in any other form, and if you
have downloaded the software, the licensed software includes all files,
images contained in or generated by the software and accompanying data
(collectively, the "Software"). RETAILBACKUP.COM grants to you a
non-exclusive limited license to install and use the Software on as many
machines as necessary, for the sole purpose of connectivity to the
RETAILBACKUP.COM backup and restore Service (the “Service”).
-
RESTRICTIONS. You shall not transfer, distribute, rent, lease,
sublicense, assign, copy, modify, reverse compile, disassemble, or
otherwise reverse engineer or attempt to reconstruct the Software, in
whole or in part. You may only use the Software in connection with
RETAILBACKUP.COM's Service, and not with any other backup or related
service.
-
OWNERSHIP. This Agreement gives you limited rights to use the
Software. You do not own the Software. All rights, title and interest in
and to the Software not specifically granted in this license belong to
RETAILBACKUP.COM, including, without limitation, US and international
copyright and trade secret rights.
-
TERM AND TERMINATION. This Agreement is effective until
terminated. This Agreement will automatically terminate, without notice
to you, if you fail to comply with any term of this Agreement, including
the non-payment of Service Fees. You may terminate this Agreement at any
time by discontinuing service with RETAILBACKUP.COM. To discontinue
service, you must call RETAILBACKUP.COM and request cancellation of your
RetailSafe Backup Service.
YOU AGREE THAT UPON ACCOUNT TERMINATION, YOU ARE AUTHORIZING
RETAILBACKUP.COM TO DELETE ALL ASSOCIATED BACKUP FILES AND DATA FROM OUR
SERVERS.
-
USE OF SERVICE. Use of this Service consists of the right of a
Subscriber of the Service (“Subscriber”) to electronically transmit and
store computer data using either a private data communications network,
or the Internet into a location maintained by RETAILBACKUP.COM and to
retrieve said data as required. The Service is made available by
RETAILBACKUP.COM to Subscriber during the period Subscriber maintains a
paid subscription to the Service. Subscriber must maintain a current
license of RETAILBACKUP.COM’s Software for Services where software is
required to provision access.
Subscriber should maintain a primary electronic file of all materials
stored in the Service. Subscriber should not utilize the service as a
substitute for primary electronic file maintenance.
RETAILBACKUP.COM may make copies of all files stored as part of the
backup and recovery of servers utilized in connection with some of the
Services. RETAILBACKUP.COM is not obligated to archive such copies and
will utilize them only for backup purposes. They will not be accessible
to the Subscriber.
-
SERVICE FEES. Except for fees payable to an authorized
RetailSafe Backup Reseller or Manufacturer, Subscriber shall pay in
advance any registration or service fees and other charges incurred by
Subscriber or Subscriber’s designated users at the rates in effect for
the billing period in which those charges are incurred. For situations
where credit card payment is utilized, Subscriber shall maintain a
current authorization for RETAILBACKUP.COM to debit Subscriber’s credit
card account for such amounts. In addition, Subscriber shall provide
RETAILBACKUP.COM a current street address and Internet e-mail address
for all communications and shall notify RETAILBACKUP.COM of any change
of address. Subscriber shall pay all applicable taxes related to use of
the Service by Subscriber or Subscriber’s designated users. For
situations where the Subscriber’s credit card issuing financial
institution has been notified of a payment dispute, said Subscriber
agrees that proof of Service usage by Subscriber constitutes Subscriber
authorization to submit payment request to Credit Card issuing financial
institution. RETAILBACKUP.COM may, in addition, at its sole discretion
and without notice to the Subscriber, (a) suspend its performance under
this Agreement and deny Subscriber’s and Subscriber’s designated users’
access to and use of the Service until Subscriber is back in good
standing, or (b) terminate this Agreement and Subscriber’s and
Subscriber’s designated users’ access to and the use of the Service.
Further, RETAILBACKUP.COM may cancel the Service to Subscriber without
cause upon thirty (30) days prior written notice. Subscriber must
provide RETAILBACKUP.COM with written notice of Subscriber’s intent to
terminate use of the Service. A cancellation notice must be submitted by
phone. At the time of cancellation, the Subscriber’s access to any of
Subscriber’s data stored by the Service may be permanently terminated.
RETAILBACKUP.COM will not provide a refund for any unused portion of the
Services paid in advance by Subscriber.
While RETAILBACKUP.COM reserves the right to modify and change Service
fees at any time, current Service fees, and any changes to the fees will
be posted on RETAILBACKUP.COM's website at:
http://www.retailbackup.com.
-
SUBSCRIBER AGREES THAT RETAILBACKUP.COM WILL BILL SUBSCRIBER FOR THE FEE
APPLICABLE TO THE AMOUNT OF STORAGE SPACE USED ON RETAILBACKUP.COM'S
SERVERS FOR SUBSCRIBER’S DATA BACKUP. SHOULD SUBSCRIBER’S DATA BACKUP
REQUIREMENTS INCREASE SUCH THAT THE RESULTING SIZE REQUIREMENT MOVES THE
SUBSCRIBER INTO A DIFFERENT PRICE LEVEL AS PER RETAILBACKUP.COM'S
PRICING MODEL, SUBSCRIBER AGREES TO BE BILLED AT THE NEW, APPLICABLE
RATE, PRORATED FOR EACH MONTH SUBSCRIBER’S STORAGE REQUIREMENTS EXCEED
SUBSCRIBER’S PRE-AUTHORIZED STORAGE LIMIT.
-
PASSWORDS. No bailment or similar obligation is created between
Subscriber (and/or Subscriber’s designated users) and RETAILBACKUP.COM
with respect to Subscriber’s stored data. Subscriber is solely
responsible for maintaining the confidentiality of Passwords, including
restricting the use of the Passwords by Subscriber’s designated users.
Subscriber shall be responsible for all use of the Service accessed
through Subscriber’s Password.
RETAILBACKUP.COM SHALL NOT HAVE ANY RESPONSIBILITY OR OBLIGATION TO
SUBSCRIBER, SUBSCRIBER’S DESIGNATED USERS OR OTHER USERS OF THE SERVICE
TO MONITOR, SUPERVISE OR OVERSEE THE CONTENTS OF FILES STORED ON THE
SERVICE. RETAILBACKUP.COM IS NOT RESPONSIBLE FOR PROVIDING SUBSCRIBER
WITH PASSWORDS IN THE EVENT OF A FORGOTTEN PASSWORD. WITHOUT THE CORRECT
PASSWORD, SUBSCRIBER’S DATA WILL REMAIN ENCRYPTED AND INACCESSIBLE.
-
COMMUNICATIONS CIRCUITS. Subscriber is responsible for and must
provide all telephone or other communication equipment and services
necessary to access the Service. All data files are transmitted over
communication company circuits, which are wholly beyond the control and
jurisdiction of RETAILBACKUP.COM and are maintained by the
communications company. If these communication circuits are not
functional for any reason, the data files may not accurately or
completely reach RETAILBACKUP.COM's facility or equipment.
RETAILBACKUP.COM cannot be responsible for the continued operation or
functioning of these communication circuits nor the reliability of the
data files being received over them.
-
UNLAWFUL MATERIALS. Subscriber shall not use the Service for
storage, possession or transmission of any information, the possession,
creation or transmission of which violates any state, local or federal
law, including without limitation, stolen materials, obscene materials
or child pornography. SUBSCRIBER’S BACKUP FILES MAINTAINED BY
RETAILBACKUP.COM ARE SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS
OR OTHERS WITHOUT SUBSCRIBER’S CONSENT UPON PRESENTATION TO SUBSCRIBER
OR RETAILBACKUP.COM OF A SEARCH WARRANT OR SUBPOENA.
-
EXPORT CONTROLS. Subscriber acknowledges that the Software
contains encryption algorithms and may be subject to restrictions and
controls imposed under the export control laws and regulations of the
jurisdiction in which the subscriber is using the Software and may not
be exported, acquired, shipped, transferred or re-exported, directly or
indirectly, to (i) any country or region prohibited under such laws and
regulations or (ii) any end user who has been prohibited from
participating in the export transaction under such laws or regulations.
In particular, the Software is subject to regulations respecting export
permits and prohibitions on export under the laws of the United States
and Canada.
-
INDEMNIFICATION. Subscriber agrees to indemnify
RETAILBACKUP.COM against liability for use of Subscriber’s account which
liability is a direct result of Subscriber’s misuse or neglect use of
its account(s).
-
NO OTHER WARRANTIES. SUBSCRIBER EXPRESSLY AGREES THAT USE OF
THE SOFTWARE AND SERVICE IS AT SUBSCRIBER’S SOLE RISK. NEITHER
RETAILBACKUP.COM NOR ANY OF ITS LICENSORS, EMPLOYEES, OR AGENTS WARRANT
THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR
RETAILBACKUP.COM OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY
WARRANTY AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE.
EXCEPT AS EXPRESSLY PROVIDED IN THIS LICENSE, THE SOFTWARE AND SERVICE
IS PROVIDED ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND, EITHER
EXPRESSED OR IMPLIED, INCLUDING BUT NOT LIMITED TO WARRANTIES OF TITLE
OR IMPLIED WARRANTIES OF MERCHANTABILITY, NON-INFRINGEMENT OR FITNESS
FOR A PARTICULAR PURPOSE, OTHER THAN THOSE WARRANTIES WHICH ARE IMPLIED
BY AND INCAPABLE OF EXCLUSION, RESTRICTION, OR MODIFICATION UNDER THE
LAWS APPLICABLE TO THIS AGREEMENT.
-
LIMITATION OF LIABILITY. IN NO EVENT WILL RETAILBACKUP.COM OR
ITS RESELLERS, DISTRIBUTORS, AGENTS OR LICENSORS BE LIABLE FOR ANY
CLAIM, WHETHER IN CONTRACT, TORT OR ANY OTHER THEORY OF LIABILITY,
EXCEED THE AMOUNTS PAID BY SUBSCRIBER, IF ANY, FOR THE SERVICE FOR THE
TWELVE MONTH PERIOD (IF PAYING ANNUALLY) OR THE THREE MONTH PERIOD (IF
PAYING QUARTERLY) OR THE ONE MONTH PERIOD (IF PAYING MONTHLY) PRECEDING
THE EVENT FORMING THE BASIS OF THE CLAIM. IN NO EVENT WILL
RETAILBACKUP.COM NOR ANYONE ELSE INVOLVED IN CREATING, DELIVERING OR
MAINTAINING THE SERVICE BE LIABLE FOR ANY DAMAGES INCLUDING, WITHOUT
LIMITATION, ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES, LOSSES RELATED TO BUSINESS INTERRUPTION, LOSS OF
BUSINESS INFORMATION OR LOSS OF PROFITS ARISING OUT OF SUBSCRIBER’S USE
OF OR INABILITY TO USE THE SOFTWARE OR SERVICE, OR OUT OF ANY BREACH OF
WARRANTY, EVEN IF RETAILBACKUP.COM HAS BEEN ADVISED OF THE POSSIBILITY
OF SUCH DAMAGES, OR FOR ANY CLAIM BY ANY THIRD PARTY.
-
INSURANCE. Subscriber does not desire this Agreement to provide
liability for loss or damage due directly or indirectly to occurrences,
or consequences there from, which the service is designed to deter or
avert. If subscriber desires additional liability coverage, it shall be
the subscriber’s sole responsibility to secure it from an insurance
carrier or other agency of subscriber’s choice, at subscriber’s own
expense. Subscriber shall bring no suit against RETAILBACKUP.COM as a
result of any loss arising from this Agreement.
-
ASSIGNMENT. RETAILBACKUP.COM shall have the right to assign
this Agreement to any person, firm or corporation, without prior
consent.
-
EXCLUSIVE REMEDY. In the event a court of competent
jurisdiction determines that the "Insurance," "Limitation of Liability,"
and/or "No Other Warranties" section(s) of this Agreement are invalid
and RETAILBACKUP.COM should be found liable for loss or damage due to
failure of the services provided under this Agreement,
RETAILBACKUP.COM’s liability shall be limited to the Subscriber’s fees
paid, if any, for the Service for the 12 month period (if paying
annually) or the 3 month period (if paying quarterly) or the 1 month
period (if paying monthly) preceding the event forming the basis of the
claim, as agreed upon liquidated damages and not as a penalty. Because
of the nature of the services rendered and the system as a whole, it is
impractical and extremely difficult to determine the actual damages, if
any, which may result from failure on the part of RETAILBACKUP.COM to
perform its responsibilities under this Agreement. Such liquidated
damage is the exclusive remedy for any failure of the services, and the
provisions of this paragraph shall apply if loss or damage, irrespective
of cause or origin, results directly or indirectly to a person or
property from the performance or nonperformance of any obligation of
RETAILBACKUP.COM from negligence, active or otherwise, of
RETAILBACKUP.COM, its agents or employees. It is intended and expressly
agreed that the purpose of the preceding provisions are to set an upper
limit to the amount recoverable by subscriber and to fix liability of
RETAILBACKUP.COM at a specific sum not to exceed the fees paid to
RETAILBACKUP.COM for the prior twelve, three or one month(s) of service,
whichever is applicable.
-
ENTIRE AGREEMENT. This Agreement and any additional Operating
Rules published by RETAILBACKUP.COM from time to time constitute the
entire and only agreement between RETAILBACKUP.COM and Subscriber
(including Subscriber’s designated users) with respect to the Software
and Service. This Agreement supersedes all other communications and
agreements with regard to the subject matter hereof. Upon notice
published over the Service, RETAILBACKUP.COM may modify this Agreement,
the Operating Rules or prices, and may discontinue or revise any or all
other aspects of the Service at its sole discretion and without advance
notice. Unless otherwise agreed, Subscriber’s right to use the Service
or to designate users is not transferable and is subject to any limits
established by RETAILBACKUP.COM.
-
CONTROLLING LAW AND SEVERABILITY.
This Agreement is, and shall be governed by and construed in accordance
with the law of the State of New York applicable to agreements made and
performed in New York. The parties hereto agree that any dispute in any
manner arising out of this Agreement shall be submitted for resolution
by mandatory arbitration pursuant to the provisions of New York. In the
event the parties cannot agree upon a mutually-acceptable arbitrator,
such arbitrator shall be appointed by the New York District Court, New
York, New York, in accordance with said code provisions. The parties
further agree that the laws of the State of New York shall apply to all
disputes arising hereunder and that the exclusive and proper forum for
the arbitration of disputes arising hereunder shall be in New York, New
York. The parties further agree that the successful party in any such
arbitration shall be entitled to the recovery of its reasonable
attorney's fees and costs, to be awarded by the arbitrator.
Notwithstanding any acknowledgement of a Subscriber purchase order by
RETAILBACKUP.COM, any provision or condition in any purchase order,
voucher, letter or other memorandum of the Subscriber which is in any
way inconsistent with, or adds to the provisions of this agreement is
null and void. Neither the course of conduct between parties nor trade
practice shall act to modify the provisions of this Agreement. If any
provision of this Agreement is determined to be invalid, all other
provisions shall remain in full force and effect. The provisions of
paragraph 12 and 18 and all obligations of and restrictions on
Subscriber and its designated users shall survive any termination of
this Agreement.
|
|