End user agreement for Online Backup Tool
End User License Agreement (EULA)
BEFORE INSTALLING AND USING THE SOFTWARE PRODUCT WHICH EITHER YOU HAVE DOWNLOADED OR IS CONTAINED ON THESE DISKS (SOFTWARE) YOU SHOULD CAREFULLY READ THE FOLLOWING LICENSE AGREEMENT (AGREEMENT) THAT APPLIES TO THE SOFTWARE. SELECTING I ACCEPT. OR OTHERWISE DOWNLOADING, INSTALLING AND/OR USING THE SOFTWARE ESTABLISHES A BINDING AGREEMENT BETWEEN YOU AS THE PERSON LICENSING THE SOFTWARE (THE "LICENSEE" or YOU) AND ONLINE BACKUP LLC. ("LICENSOR").
This Agreement applies to the Software, whether licensed under a Full Version Software License, a Trial License, a Demonstration License or a Classroom License, each as defined and described below:
1. License Grant. Subject to the terms and conditions of this Agreement, upon purchase of a license to the Software, LICENSOR grants and LICENSEE accepts a nonexclusive, nontransferable, nonassignable, and nonsublicensable license to use Software only for LICENSEE's own internal use solely on the specific number of computers that YOU have licensed and only subject to the license restrictions and limitations set forth in this Agreement. Installation of Software is LICENSEE's responsibility. The following restrictions set forth in Section 1.1 through 1.3 shall not apply to Full Version Software Licenses.
1.1 Evaluation/Trial/Beta License of Software. If Online Backup identifies the Software as an Evaluation Version, Trial Version or Beta Version, LICENSEE has the right to use the Software for such limited purpose for the period found (the Trial Period') unless extended by LICENSOR. Software licensed under such a limited license (the Trial License) may not be used in a production environment. There will be no charge to LICENSEE for a Trial License. At the conclusion of the Trial Period, unless a Software License to the Software is purchased, LICENSEE will delete the Software from its systems and have no further license or other rights with respect to the Software except as to the rights and responsibilities in this Agreement.
1.2 Demonstration License of Software. If Online Backup identifies the Software as a Demonstration Version LICENSEE has the right to install and access one copy of the Software only for the purpose of commercial demonstration. Without limiting the foregoing, LICENSEE may not use it for commercial, professional, or other for-profit or non-profit purposes. The Demonstration Version may have functional limitations.
1.3 Classroom License of Software. If Online Backup identifies the Software as a Classroom Version LICENSEE has the right to install and access a single copy of the Software on up to the permitted number of computers as specified by Online Backup, only for personal learning purposes, and no other purpose. Without limiting the foregoing, Classroom Versions of the Software may not be used for commercial, professional or other for-profit purposes and may only be used by persons who qualify as a permitted user of Classroom Versions.
2. Use Rights.
2.1 Assigning the License. Before YOU run any instance of the Software under a software license, YOU must assign that license to one of YOUR Computers and that Computer is the licensed Computer for that particular Software License. YOU may assign other Software Licenses to the same Computer, but YOU may not assign the same Computer License to more than one Computer except as identified herein.
YOU may reassign a Software License if you retire the licensed Computer due to permanent Computer failure. If YOU reassign a Software License, the Computer to which YOU reassign the license becomes the new licensed Computer for that particular Software License.
2.2 Running Instances of the Software. YOU have the rights to run the Software on one (1) Computer (either physical or virtual). Every Computer you would create a backup from or restore a backup to must have a valid license.
3. Backup Copy. LICENSEE may make one copy of Software only for archival purposes, only in machine readable form, provided that such archival copy is only used for archival purposes and never in a production environment and is marked with every notice on the original.
4. Support. By virtue of licensing a Full Version and registering YOUR Full Version Software License with LICENSOR, and at LICENSOR'S sole discretion, LICENSEE is entitled to: (1) patches or dot releases (e.g., 11.01, 11.02, and 11.03 etc.) of the Software License. A major release(s) of the Software License (e.g., Version 12, Version 13, etc) are not included in Support and would require a paid upgrade fee; (2) support consistent with current LICENSOR support policies as found in the Support section of the Licensor web site (specified in the product and/or documentation) or any relevant contract between Licensee and Licensor; and (3) other electronic services that LICENSOR may make generally available to its customers, such as an electronically available base of knowledge (Knowledge Base) to assist in answering general questions about the Software License. In the event that LICENSEE makes any unauthorized modifications to the Software Product, Support services are null and void. LICENSEE'S use of patches and dot releases shall be subject to the terms and conditions of this Agreement, unless otherwise specified at the time of delivery.
Support policies are subject to change, but generally will include basic support for 30 days following purchase. Proof of legal ownership and/or registration is required to obtain support.
5. Limitations. Notwithstanding any references to purchase the Software is licensed and not sold pursuant to this Agreement. This Agreement confers a limited license to the Software and does not constitute a transfer of title to or sale of all or a portion of the Software, and LICENSOR retains ownership of all copies of the Software. LICENSEE acknowledges that the Software contains trade secrets of LICENSOR, its suppliers or licensors, including but not limited to the specific internal design and structure of individual programs and associated interface information. Accordingly, except as otherwise expressly provided under this Agreement, LICENSEE shall have no right, and LICENSEE specifically agrees not to: (i) transfer, assign or sublicense its license rights to any other person or entity, or use the Software on any equipment other than the PC, and LICENSEE acknowledges that any attempted transfer, assignment, sublicense or use shall be void; (ii) make error corrections to or otherwise modify or adapt the Software or create derivative works based upon the Software, or permit third parties to do the same; (iii) reverse engineer or decompile, decrypt, disassemble or otherwise reduce the Software to human-readable form, except to the extent otherwise expressly permitted under applicable law notwithstanding this restriction; (iv) use or permit the Software to be used to perform services for third parties, whether on a service bureau, web hosting or time sharing basis or otherwise, without the express written authorization of LICENSEE; (v) utilize any equipment, device, software, or other means designed to circumvent or remove any form of copy protection used by LICENSOR in connection with the Software, or use the Software together with any activation code, serial number, or other copy protection device not supplied by LICENSOR, or (vi) disclose, provide, or otherwise make available trade secrets contained within the Software in any form to any third party without the prior written consent of LICENSOR. The prohibitions contained in this paragraph shall not apply to actions that are expressly authorized under mandatory law (including, but not limited, to actions authorized under the laws implementing EC Directive 91/250 on the legal protection of computer programs) provided that LICENSEE may not exercise any rights arising under such mandatory laws unless and until LICENSEE has given reasonable prior written notice to LICENSOR to allow LICENSOR, at its sole discretion, to provide an alternative remedy, e.g., information necessary to achieve interoperability of an independently created program with the Software.
6. Confidentiality. The Software is a trade secret of LICENSOR and is proprietary to LICENSOR. LICENSEE shall maintain Software in confidence and prevent disclosure of Software using at least the same degree of care it uses for its own similar proprietary information, but in no event less than a reasonable degree of care. LICENSEE shall not disclose Software or any part thereof to anyone for any purpose, other than to employees for the purpose of exercising the rights expressly granted under this Agreement. LICENSEE shall not, and shall not allow any third party to decompile, disassemble or otherwise, reverse engineer or attempt to reconstruct or discover any source code or underlying ideas, algorithms, file formats or programming or interoperability interfaces of Software or of any files contained or generated using Software by any means whatsoever. The obligations under this paragraph shall survive any termination of the Agreement.
7. Disclaimer of Warranties. THE SOFTWARE IS PROVIDED AS IS AND LICENSOR DISCLAIMS ALL WARRANTIES, EXPRESSED OR IMPLIED WITH RESPECT TO SOFTWARE INCLUDING ALL IMPLIED WARRANTIES OF MERCHANTABILITY, TITLE, NON-INFRINGEMENT OF THIRD PARTIES' RIGHTS, AND FITNESS FOR A PARTICULAR USE. WITHOUT LIMITING THE FOREGOING, LICENSOR DOES NOT WARRANT THAT THE FUNCTIONS CONTAINED IN SOFTWARE WILL OPERATE IN THE COMBINATION LICENSEE SELECTS, THAT OPERATION OF SOFTWARE WILL BE UNINTERRUPTED OR ERROR-FREE AND/OR THAT DEFECTS IN THE SOFTWARE WILL BE CORRECTED. THE ENTIRE RISK AS TO THE RESULTS AND PERFORMANCE OF THE SOFTWARE IS ASSUMED BY LICENSEE. FURTHERMORE, LICENSOR DOES NOT WARRANT OR MAKE ANY REPRESENTATIONS REGARDING THE USE OR THE RESULTS OF THE USE OF THE SOFTWARE OR RELATED DOCUMENTATION IN TERMS OF THEIR CORRECTNESS, ACCURACY, RELIABILITY, CURRENTNESS, OR OTHERWISE. NO ORAL OR WRITTEN INFORMATION OR ADVICE GIVEN BY LICENSOR SHALL CREATE A WARRANTY OR IN ANY WAY INCREASE THE SCOPE OF THIS WARRANTY.
8. Liability Limitations. LICENSOR SHALL NOT BE LIABLE FOR ANY SPECIAL, INDIRECT, PUNITIVE, OR CONSEQUENTIAL DAMAGES RESULTING FROM USE OF SOFTWARE UNDER ANY CONTRACT, NEGLIGENCE, STRICT LIABILITY OR OTHER THEORY. LICENSOR'S CUMULATIVE LIABILITY FOR DAMAGES HEREUNDER, WHETHER IN AN ACTION IN CONTRACT, WARRANTY, TORT, NEGLIGENCE, STRICT LIABILITY, INDEMNITY, OR OTHERWISE, SHALL IN NO EVENT EXCEED THE AMOUNT OF LICENSE FEES (IF ANY) PAID BY THE LICENSEE FOR THE SOFTWARE LICENSED UNDER THIS AGREEMENT. THESE LIMITATIONS SHALL APPLY NOTWITHSTANDING ANY FAILURE OF ESSENTIAL PURPOSE OF ANY LIMITED REMEDY.
9. LICENSEE Indemnity. LICENSEE agrees to indemnify and defend LICENSOR, and hold it harmless from all costs, including attorney's fees, arising from any claim that may be made against LICENSOR by any third party as a direct or indirect result of any use by LICENSEE of the Software:
10. Termination. This Agreement and the license may be terminated without fee reduction (i) by LICENSEE without cause on thirty (30) days notice; (ii) by LICENSOR, in addition to other remedies, if LICENSEE is in default and fails to cure within ten (10) days following notice; (iii) on notice by either party hereto if the other party ceases to do business in the normal course, becomes insolvent, or becomes subject to any bankruptcy, insolvency, or equivalent proceedings. Upon termination for any reason, LICENSEE shall immediately return Software and all copies to LICENSOR and delete all Software and all copies from the Hardware.
11. Law. This Agreement shall be governed by the laws of the Commonwealth of Massachusetts, exclusive of its conflicts of laws provisions and without regard to the United Nations Convention on Contracts for the International Sale of Goods, and any suit under this Agreement shall exclusively be brought in a federal or state court in Massachusetts. Any action against LICENSOR under this Agreement must be commenced within one year after such cause of action accrues.
12. Government End Users. This provision applies to all Software acquired directly or indirectly by or on behalf of the United States Government. The Software is a commercial product, licensed on the open market at market prices, and was developed entirely at private expense and without the use of any U.S. Government funds. If the Software is supplied to the Department of Defense, the U.S. Government acquires only the license rights customarily provided to the public and specified in this Agreement. If the Software is supplied to any unit or agency of the U.S. Government other than the Department of Defense, the license to the U.S. Government is granted only with restricted rights. Use, duplication, or disclosure by the U.S. Government is subject to the restrictions set forth in subparagraph (c) of the Commercial Computer Software Restricted Rights clause of FAR 52.227-19.
13. Export Restriction. LICENSEE will not remove or export from the United States or the country originally shipped to by LICENSOR (or re-export from anywhere) any part of the Software or any direct product thereof except in compliance with applicable export laws and regulations, including without limitation, those of the U.S. Department of Commerce.
14. Customer Experience Program. In order for LICENSOR to better serve its customers, LICENSOR regularly engages in various kinds of methods to gather licensee feedback. LICENSOR'S Customer Experience Program (CEP) is a way to allow all of LICENSOR's customers to contribute to the features, design and development of LICENSOR products. If LICENSEE is using the Software as a beta customer, LICENSEE's acceptance of this Agreement and use of the Software will automatically enroll LICENSEE in the CEP, the details of which can be found. By continuing to use the Software, LICENSEE understands and acknowledges that it has also agreed to participate in the CEP. In order to leave the CEP and no longer participate, LICENSEE must immediately cease use of the Software altogether and de-install any Software installed by LICENSEE.
For any use of standard Software, participation is the CEP is voluntary, and further details regarding LICENSEE's ability to opt in/opt out of the CEP can be found.
15. Miscellaneous. This Agreement contains the entire understanding of the parties and supersedes all other agreements, oral or written, including purchase orders submitted by LICENSEE, with respect to the subject matter covered in this Agreement. The delay or failure of either party to exercise any right provided in the Agreement shall not be deemed a waiver. All notices must be in writing and shall be delivered by hand (effective when received) or mailed by registered or certified mail (effective on the third day following the date of mailing). The notices addressed to LICENSOR shall be sent to its address set out above. If any provision of this Agreement is or will be found invalid or unenforceable, that provision will be enforced to the maximum extent permissible, and the other provisions of this Agreement will remain in full force LICENSEE may not assign, pledge, or otherwise transfer this agreement, nor any rights or obligations hereunder in whole or in part to any entity. LICENSOR may, without the consent of LICENSEE, assign this Agreement and any of its rights and/or obligations hereunder upon written notice to LICENSEE, to any of its affiliates or to an entity with or into which it is merged or consolidated or to which it sells all or substantially all its capital stock or assets associated with the operations related to this Agreement. Paragraph headings are for convenience and shall have no effect on interpretation. In the event that it is necessary to undertake legal action to collect any amounts payable or to protect or to defend against the unauthorized use, disclosure, distribution, of the Software hereunder and/or other violation of this Agreement, LICENSOR shall be entitled to recover its costs and expenses including, without limitation, reasonable attorneys' fees.