RetailSafe Backup Service (the "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 NesTECH ("PROVIDER") and
to retrieve said data should they be required. The Service is made
available by PROVIDER to Subscriber during the period Subscriber
maintains a paid subscription to the Service. Subscriber must be a
currently licensed user of PROVIDER's software for Services where
software is required to provision access.
terms and any additional Operating Rules published by PROVIDER from time
to time constitute the entire and only agreement (collectively, the
"Agreement") between PROVIDER and Subscriber (including Subscriber's
designated users) with respect to the Service and supersede all other
communications and agreements with regard to the subject matter hereof.
Upon notice published over the Service, PROVIDER 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 PROVIDER.
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 PROVIDER to debit
Subscriber's credit card account for such amounts. In addition,
Subscriber shall provide PROVIDER a current street address and Internet
e-mail address for future communications and shall notify PROVIDER 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. PROVIDER 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, PROVIDER may cancel the Service to Subscriber without cause
upon thirty (30) days prior written notice. Subscriber must provide
PROVIDER with written notice of Subscriber's intent to terminate use of
the Service. At the time of cancellation, the Subscriber’s access to any
of Subscriber’s data stored by the Service may be permanently
terminated. PROVIDER will not provide a refund for any unused portion of
the Services paid in advance by Subscriber.
bailment or similar obligation is created between Subscriber (and/or
Subscriber's designated users) and PROVIDER with respect to Subscriber's
stored data. Subscriber is solely responsible for maintaining the
confidentiality of Passwords, including restricting the use of the
Password by Subscriber's designated users. Subscriber shall be
responsible for all use of the Service accessed through Subscriber's
Password. PROVIDER 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. PROVIDER 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.
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 PROVIDER ARE
SUBJECT TO EXAMINATION BY LAW ENFORCEMENT OFFICIALS OR OTHERS WITHOUT
SUBSCRIBER'S CONSENT UPON PRESENTATION TO SUBSCRIBER OR PROVIDER OF A
SEARCH WARRANT OR SUBPOENA.
Subscriber agrees to indemnify PROVIDER against liability for use of
Subscriber's account which liability is a direct result of Subscriber's
misuse or negligent use of its account(s).
may make copies of all files stored as part of the back up and recovery
of servers utilized in connection with some of the Services. PROVIDER is
not obligated to archive such copies and will utilize them only for
backup purposes. They will not be accessible to Subscriber.
Subscriber is responsible for and must provide all telephone and other
equipment and services necessary to access the Service. 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.
SUBSCRIBER EXPRESSLY AGREES THAT USE OF THE SERVICE IS AT SUBSCRIBER'S
SOLE RISK. NEITHER PROVIDER NOR ANY OF ITS LICENSORS, EMPLOYEES, OR
AGENTS WARRANT THAT THE SERVICE WILL BE UNINTERRUPTED OR ERROR FREE; NOR
PROVIDER OR ANY OF ITS LICENSORS, EMPLOYEES OR AGENTS MAKE ANY WARRANTY
AS TO THE RESULTS TO BE OBTAINED FROM USE OF THE SERVICE. THE SERVICE IS
MADE AVAILABLE ON AN "AS IS" BASIS WITHOUT WARRANTIES OF ANY KIND,
EITHER EXPRESS 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. NEITHER PROVIDER NOR ANYONE
ELSE INVOLVED IN CREATING, DELIVERING OR MAINTAINING THE SERVICE SHALL
BE LIABLE FOR ANY DIRECT, INDIRECT, INCIDENTAL, SPECIAL, EXEMPLARY OR
CONSEQUENTIAL DAMAGES ARISING OUT OF USE OF THE SERVICE OR INABILITY TO
USE THE SERVICE OR OUT OF ANY BREACH OF ANY WARRANTY. IN NO EVENT WILL
PROVIDER'S LIABILITY 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 PRECEDING THE EVENT
FORMING THE BASIS OF THE CLAIM.
provisions of paragraphs 4, 6, 7, and 9 are for the benefit of
Subscriber and its respective Suppliers, Licensors, Employees, and
Agents; and each shall have the right to assert and enforce such
provisions directly on its own behalf.
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.
Notwithstanding any acknowledgment of a Subscriber purchase order by
PROVIDER, 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 9 and 12 and all obligations of and restrictions on Subscriber
and its designated users shall survive any termination of this